Model N Customer Portal Terms Addendum This Model N Customer Portal Terms Addendum (the “
Portal Terms”) supplements the governing subscription service terms and conditions (collectively, the “
Service Agreement”) between the Customer and Model N, Inc. (“
Model N”). These Portal Terms are part of and are subject to the Service Agreement, and apply to the use of and access to the Customer Portal (defined below). Capitalized terms used in these Portal Terms but not defined herein have the same meaning as in the Service Agreement.
BY CLICKING ON THE CHECKBOX MARKED “I AGREE TO THE PORTAL TERMS,” OR BY ACCESSING OR USING THE CUSTOMER PORTAL, YOU AGREE TO, AND WILL BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THESE PORTAL TERMS. IF YOU ARE AGREEING TO THESE PORTAL TERMS ON BEHALF OF A COMPANY, INSTITUTION, OR OTHER ORGANIZATION OR ENTITY (SUCH AS YOUR EMPLOYER), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY TO THESE PORTAL TERMS. IN THAT CASE, “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH COMPANY, ORGANIZATION OR ENTITY. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR AUTHORIZE OTHERS TO USE THE CUSTOMER PORTAL.
IF YOU ARE USING THE CUSTOMER PORTAL ON BEHALF OF A COMPANY, INSTITUTION, OR OTHER ORGANIZATION OR ENTITY, YOUR USE OF THE CUSTOMER PORTAL IS GOVERNED BY THESE PORTAL TERMS AND THE SERVICE AGREEMENT.
1. The Customer Portal. For the purposes of these Portal Terms the “
Customer Portal” means the cloud-based service platform made available by Model N to Customer under these Portal Terms, including the website through which the Customer Portal is made available located at
https://customer.modeln.com. The Service, as the terms is defined in the Subscription Service Terms, is deemed amended by these Portal Terms to include the Customer Portal. Provided however, in accordance with Section 6.1, the Customer Portal and its usage are not subject to any service level guarantees.
2.
License Grant. The Customer Portal allows Customer and its End Users to view and access the Customer Data (including basic usage metrics) in an enhanced processing environment and generate reports through a dash board console (the “
Purpose”). Model N will make the Customer Data available via the Customer Portal for the Purpose, and Customer grants to Model N a non-exclusive, non-transferable, worldwide, royalty-free license, with the right to sublicense, to reproduce, process, format, transmit, prepare derivative works based upon, display to Customer and its End Users, and otherwise use the Customer Data solely for the Purpose and as necessary provide the Service to Customer and End Users. For the avoidance of doubt, Customer does not grant Model N any right or license to use the Customer Data or Customer’s intellectual property for any third party’s use or benefit. The Customer Data, and all intellectual property rights therein, is and will remain the exclusive property of Customer and its licensors, and Customer reserves all rights and licenses in and to the Customer Data not expressly granted to Model N under these Portal Terms.
3. Service Registration and Access. As used below, the term “
Registration Materials” means: (a) Model N’s account registration form for the Customer Portal, as completed by you and accepted by Model N; and (b) the Model N service description documentation that Model N makes available to you in connection with your registration. Subject to these Portal Terms, you may access and use the Service, solely via the Model N website and only for your internal purposes, in accordance with the Service Agreement.
All new registrations are subject to our approval, and will not be effective until confirmed by Model N. All information you provide as part of the registration process must be current, accurate, and complete, and you agree to keep all registration and other account information (including but not limited to payment information) up to date.
4. Acceptable Use Policies.
4.1 You acknowledge and agree that we do not monitor or police communications or data transmitted through the Service and that we will not be responsible for the content of any such communications or transmissions. You must use the Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You shall keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles. You acknowledge that our system is not designed for transaction processing or other commerce related activities. You shall not use the Service for such purposes or under such circumstances. The Service is not intended for use by persons under the age of 18. You must ensure that each of your End Users are aware of and complies with the requirements and restrictions set forth in this paragraph.
4.2 You are responsible for all activities that occur under your account (or any of your End User accounts), and for your End User’s compliance with these Portal Terms. Without limiting any terms of the Service Agreement, you shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data that you (or any of your End Users) input into or store using the Service; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Model N promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Service.
5. Termination of Use; Discontinuation and Modification of Customer Portal. If you violate any of these Portal Terms, your permission to use the Customer Portal will automatically terminate. You also agree that Model N may, at any time and without notice to you, suspend or revoke your access to and use of the Customer Portal, and any account(s) you may have in connection with the Customer Portal: (a) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights of Model N or any third party; (b) cancellation of the Service or (c) in connection with any general discontinuation of the Customer Portal. We also reserve the right to modify the Customer Portal at any time without notice to you. If we suspend or revoke your access to the Customer Portal for no fault on your part, or if we discontinue or modify the Customer Portal such that it no longer complies with the applicable service description in your Registration Materials, we will have no liability whatsoever on account of any change to the Customer Portal or any suspension or revocation of your access to or use of the Customer Portal.
6. Additional Terms
6.1 No Warranty. The Customer Portal is provided “AS IS” on an “AS AVAILABLE” basis without warranty of any kind. Your use of the Customer Portal is at your own risk. You acknowledge and agree that Model N will not be liable for any damages whatsoever relating to Customer’s use of the Customer Portal. Model N makes no warranties, express or implied, with respect to the Customer Portal, and expressly disclaims any warranties or conditions of non-infringement, merchantability, and fitness for any particular purpose. Further, Model N does not warrant that the Customer Portal will be completely error free or uninterrupted. Without limiting any terms of the Service Agreement, you are responsible for your Customer Data and its accuracy.
6.2 Feedback. During your use of the Customer Portal, Customer may be asked to provide comments, suggestions, and feedback regarding the use of the Customer Portal. Customer acknowledges and agrees that any feedback, comments, or suggestions you provide regarding the Customer Portal is given entirely voluntary and, even if designated as confidential, will not create any confidentiality obligation for Model N. Moreover, Model N will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such feedback, comments or suggestions as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
7. General
7.1 Modification. Model N may revise these Portal Terms from time to time with prior notice to Customer. By continuing to access or use the Customer Portal after those revisions become effective, Customer agrees to be bound by the revised Portal Terms. If any change is unacceptable to Customer, the only recourse is to terminate the use of the Customer Portal. The continued access and/or use of the Customer Portal following a notification of a change as described above will constitute binding acceptance of the change.
7.2 Incorporation. These Portal Terms are the complete and exclusive agreement between the parties regarding the Customer Portal, and supersede all other communications regarding the Customer Portal. These Customer Portal Terms are part of and are incorporated by this reference into the Service Agreement. All other terms and conditions in the Service Agreement will apply. In the event of a conflict between the Portal Terms and the Service Agreement, the Portal Terms will prevail (with respect to the use of the Customer Portal).
CUSTOMER PORTAL TERMS OF SERVICE AGREEMENT Model N is pleased to make its cloud-based service platform (the “
Customer Portal”) (as further described below) available to you subject to the following terms and conditions of this Customer Portal Terms of Service Agreement (the “
Portal Terms”). These Portal Terms are a legal contract between you (the business or other entity registering to use the Customer Portal) and Model N, Inc. Your access to and use of the Customer Portal are expressly conditioned on your agreement to and compliance with these Portal Terms. As used below, “we,” “us,” “our,” and “Model N” refer to Model, Inc.
BY CLICKING ON THE CHECKBOX MARKED “I AGREE TO THE PORTAL TERMS,” OR BY ACCESSING OR USING THE CUSTOMER PORTAL, YOU AGREE TO, AND WILL BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THESE PORTAL TERMS. IF YOU ARE AGREEING TO THESE PORTAL TERMS ON BEHALF OF A COMPANY, INSTITUTION, OR OTHER ORGANIZATION OR ENTITY (SUCH AS YOUR EMPLOYER), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY TO THESE PORTAL TERMS. IN THAT CASE, “YOU,” “YOUR” AND “CUSTOMER” SHALL REFER TO SUCH COMPANY, ORGANIZATION OR ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR AUTHORIZE OTHERS TO USE THE CUSTOMER PORTAL.
1. CERTAIN DEFINITIONS1.1 “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with Customer, where “
control” means ownership of more than 50% of the equity or beneficial interests of such entity or the right to vote for or appoint a majority of the board of directors or other governing body of such entity.
1.2 “Customer Portal” means Model N’s cloud-based service platform and related services, including the website through which the portal is made available located at https://customer.modeln.com. The Customer Portal does not include any Third-Party Applications and Customer-specific enhancements. 1.3 “
Documentation” means the on-line information, product descriptions, manuals and materials relating to the use of the Customer Portal made available to Customer in connection with the use of the Customer Portal.
1.4 “End User” means an individual who is authorized by Customer to use the Customer Portal, regardless of whether the individual is actively using the Customer Portal at any given time.
“1.5 Third-Party Applications” means online, web-based applications and offline software products that are procured by Customer from third parties other than Model N to interoperate with the Customer Portal.
2. ACCESS TO CUSTOMER PORTAL 2.1 Service Registration and Access. As used below, the term “
Registration Materials” means: (a) Model N’s account registration form for the Customer Portal, as completed by you and accepted by Model N; and (b) the Model N service description documentation that Model N makes available to you in connection with your registration. Subject to Customer’s compliance with these Portal Terms, you may access and use the Customer Portal, solely via the Model N website and only for your internal purposes.
All new registrations are subject to our approval, and will not be effective until confirmed by Model N. All information you provide as part of the registration process must be current, accurate, and complete, and you agree to keep all registration and other account information up to date.
2.2 Restrictions on Use.
(a) As between Customer and Model N, Customer is responsible for all activities conducted by its End User and shall: (i) use the Customer Portal only for lawful purposes and in compliance with all applicable local, state, federal and foreign laws (including, without limitation, export laws and regulations of the United States and other applicable jurisdictions, including programs managed by the United States Department of the Treasury, Office of Foreign Asset Control (OFAC)); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Customer Portal, and shall notify Model N promptly of any known unauthorized access or use; and (iii) retain all legends relating to the copyright, trademarks, patents, or confidentiality on all copies of the Documentation or any print of a screen displayed from the Customer Portal.
(b) Customer shall use the Customer Portal only for Customer’s internal business purposes and shall not directly or indirectly: (i) use the Customer Portal as a service bureau, application service provider (ASP), or other Customer Portal provided to third parties; (ii) license, sublicense, sell, resell or otherwise transfer or assign its rights in the Customer Portal or the Documentation to any third party nor allow any third party to access or use the Customer Portal or the Documentation (except to a successor in interest as permitted under these Portal Terms); (iii) attempt to gain unauthorized access to the software source code underlying the Customer Portal or to the related systems or networks supporting the Customer Portal; (iv) copy or modify the software elements of the Customer Portal, in whole or in part; (v) create derivative works based on the Customer Portal or the Documentation or any components thereof; or (vi) translate, reverse engineer, de-compile, disassemble or otherwise attempt to discover for any reason any source code, underlying ideas or algorithms of the Customer Portal or Documentation.
(c) User subscriptions to the Customer Portal are for designated End Users and cannot be shared or used by more than one user per End User account but may be reassigned to new End Users replacing former End Users who no longer require access to and use of the Customer Portal. Customer is responsible for all activities that occur under its account (or any of your End User accounts), and for your End User’s compliance with these Portal Terms. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data that Customer (or any End Users) input into or store using the Customer Portal.
(d) Customer acknowledges and agrees that Model N does not monitor or police communications or data transmitted through the Service and that Model N will not be responsible for the content of any such communications or transmissions. Without limiting any other terms of these Portal Terms, you shall keep confidential and not disclose to any third parties any user identifications, account numbers and account profiles. The Customer Portal is not intended for use by persons under the age of 18. You must ensure that each of your End Users are aware of and complies with the requirements and restrictions set forth in this Section 2.2.
(a) License Grant. The Customer Portal allows Customer and its End Users to view and access the Customer Data (including basic usage metrics) in an enhanced processing environment and generate reports through a dash board console (the “Purpose”). Model N will make the Customer Data available via the Customer Portal for the Purpose, and Customer grants to Model N a non-exclusive, non-transferable, worldwide, royalty-free license, with the right to sublicense, to reproduce, process, format, transmit, prepare derivative works based upon, display to Customer and its End Users, and otherwise use the Customer Data solely for the Purpose, as necessary provide the Customer Portal to Customer and End Users and confirming Customer’s compliance with the terms of these Subscription Customer Portal Terms.. For the avoidance of doubt, Customer does not grant Model N any right or license to use the Customer Data or Customer’s intellectual property for any third party’s use or benefit. The Customer Data, and all intellectual property rights therein, is and will remain the exclusive property of Customer and its licensors, and Customer reserves all rights and licenses in and to the Customer Data not expressly granted to Model N under these Portal Terms.
(b) Customer Data. Model N does not own any data, information, or material that Customer, its Partners, Affiliates or End Users upload or enter into to the Customer Portal in the course of using the Customer Portal, including any data Customer purchases from third parties (“Customer Data”). Customer must ensure timely delivery of Customer Data to Model N and retains sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of use of all Customer Data. Customer represents and warrants that it has all the consents and permissions necessary to grant the rights to Model N granted herein.
(c) Data Security; Data Privacy. Model N will implement and maintain appropriate technical, administrative and organizational measures designed to protect Customer Data against the accidental or unlawful distribution or accidental loss, alteration, corruption, or unauthorized disclosure or access to Customer Data (“
Security Incident”). If Model N becomes aware of a Security Incident, Model N will notify Customer of such Security Incident as soon as reasonably practicable within 24 hours, having regard to the nature of such Security Incident.
CUSTOMER ACKNOWLEDGES AND AGREES THAT MODEL N IS UNABLE TO GUARANTEE ABSOLUTE SECURITY OF CUSTOMER DATA, INCLUDING PERSONAL DATA (AS DEFINED BELOW), AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THESE PORTAL TERMS, MODEL N HAS NO LIABILITY TO CUSTOMER FOR ANY SECURITY INCIDENT UNLESS MODEL N’S SECURITY PRACTICES ARE BELOW GENERALLY ACCEPTED INDUSTRY STANDARDS AND SOLELY TO THE EXTENT ANY SUCH DEFICIENCY CAUSED THE SECURITY INCIDENT.
Customer is responsible for the use of the Customer Portal by any End User and any person who gains access to Customer Data or the Customer Portal as a result of Customer’s failure to use generally accepted industry security precautions, even if such use was not authorized by Customer. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Customer Portal, and notify Model N promptly of any such unauthorized access or use.
(d) Personal Data. To the extent Customer Data includes information relating to an individual (i) who can be identified from such data, (ii) who is potentially identifiable from such data either by itself or in combination with any other information, or (iii) that would otherwise be considered personally identifiable information under applicable law (“
Personal Data”), the parties agree that the collection and control of Personal Data remain at all times with Customer as Data Controller (as defined under applicable law). Model N, as a Data Processor (as defined under applicable law), will process Personal Data exclusively and in accordance with Customer’s lawful instructions. Customer instructs Model N to process Personal Data to provide the Customer Portal and respond to Customer support requests. Model N uses third-party providers of data center and hosting infrastructure (“
Subprocessors”) in connection with providing the Customer Portal and the processing of Personal Data. Customer consents to the use of Subprocessors to process Personal Data. Each party agrees to comply with its respective obligations under applicable law pertaining to Personal Data. Customer agrees that the Customer Portal may not be used to store, maintain, process or transmit social security/national identification numbers, credit and debit card numbers, driver license information or any other information that would otherwise be considered “
sensitive” Personal Data under applicable law.
(e) Usage Data. Model N may record anonymized information and data about how Customer and its End Users use the Customer Portal such as the number of views per page, session length, task completion, number of log-ins, and other statistical and performance information related to the provision and operation of the Customer Portal (“
Usage Data”). Usage Data does not contain any Customer Data, Customer Confidential Information, or data that personally identifies an individual or that is business specific.
(f) Export Control. Customer acknowledges that the Customer Portal is subject to the U.S. Export Administration Regulations (EAR) and economic sanctions regulations administered by OFAC. Customer agrees to comply with the EAR and OFAC regulations and all applicable international and national export and import laws. Customer agrees that (i) it will not export or re-export the Customer Portal to any destination requiring an export license or other approval under the EAR or OFAC regulations, and (ii) the Customer Portal will not be used for any transactions with or for the benefit of any End User, entity or country subject to sanctions administered by OFAC, without first obtaining an export license or government authorization, as applicable, and Model N’s prior written consent.
(g) HIPAA. Customer agrees that: (i) Model N is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Customer Portal may not be used to store, maintain, process or transmit protected health information (“
PHI”) and (iii) the Customer Portal will not be used in any manner that would require Model N or the Customer Portal to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“
HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected” health information” or “PHI” shall have the meanings described in HIPAA.
3. PROPRIETARY RIGHTS
3.1 Ownership. As between the parties, Model N retains all title, intellectual property and other ownership rights in the Customer Portal, Documentation, Usage Data and Model N Confidential Information. Customer retains all title, intellectual property and other ownership rights in all Customer Data and Customer Confidential Information.
3.2 No Implied Rights. There are no implied rights and all other rights not expressly granted herein are reserved. No license, right or interest in any Model N software, trademark, copyright, trade name or Customer Portal mark is granted hereunder. Customer is not acquiring any right or interest in the Customer Portal or the Documentation except the right to access and use the Customer Portal and the Documentation granted pursuant to Section 2.1 (Grant of Rights). Customer shall not remove from any full or partial copies made by Customer of the Documentation any copyright or other proprietary notice contained in or on the original, as delivered to Customer.
3.3
Feedback. During your use of the Customer Portal, Customer may be asked to provide comments, suggestions, and feedback regarding the use of the Customer Portal. Customer acknowledges and agrees that any feedback, comments, or suggestions you provide regarding the Customer Portal is given entirely voluntary and, even if designated as confidential, will not create any confidentiality obligation for Model N. Moreover, Model N will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such feedback, comments or suggestions as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. 4. CONFIDENTIALITY
4.1 Confidential Information. Each party agrees that all information and material disclosed by or on behalf of the other party, including, but not limited to, software code, inventions, algorithms, business concepts, workflow, ideas, and all other business, technical and financial information they obtain from the other in connection with these Portal Terms is the confidential information (“
Confidential Information”) of the disclosing party. Notwithstanding the foregoing, the term “
Confidential Information” expressly does not include information that the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without reference to or use of such Confidential Information.
4.2 Non-Disclosure. The receiving party shall not disclose or otherwise make available any of the Confidential Information to anyone, including employees, contractors and agents, except those employees, contractors and agents of the receiving party who need to know the Confidential Information for the purpose of performing the receiving party’s obligations under these Portal Terms and who are bound by obligations of non-use and non-disclosure substantially similar to those set forth herein. The receiving party shall be responsible for any disclosure or use of the Confidential Information by its employees, contractors or agents.
4.3 Compelled Disclosure. The receiving party may disclose the Confidential Information to the extent required by law, court order or legal process, provided that the receiving party promptly provides to the disclosing party prior notice, if legally permissible, of such disclosure and cooperates in obtaining an order protecting the Confidential Information from public disclosure.
4.4 Use. The receiving party shall use the Confidential Information only for the purpose of performing its obligations under these Portal Terms and shall not use the Confidential Information for its own benefit or the benefit of another (except for the disclosing party).
4.5 Standard of Care. The receiving party shall protect the disclosing party’s Confidential Information using not less than the same care with which it treats its own confidential information, but at all times shall use at least reasonable care. The receiving party shall (i) implement and maintain appropriate security measures designed to prevent unauthorized access to, or disclosure of, the disclosing party’s Confidential Information, (ii) promptly notify the disclosing party of any unauthorized access or disclosure of the disclosing party’s Confidential Information, and (iii) cooperate with the disclosing party in the investigation and remediation of any such unauthorized access or disclosure.
4.6 Return. Except as otherwise authorized or required in furtherance of the purposes of these Portal Terms, promptly upon a request by the disclosing party at any time the receiving party will destroy, erase or return to the disclosing party all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. Notwithstanding the foregoing, the receiving party may retain copies of the Confidential Information or portions thereof solely to the extent necessary to comply with its obligations here under and its document retention requirements.
4.7 Equitable Relief. Each party acknowledges and agrees that due to the unique nature of the disclosing party’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the disclosing party, and therefore, that upon any such breach or any threat thereof, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
4.9 Confidentiality of these Portal Terms. The terms and conditions, but not the existence, of these Portal Terms, in whole or part, is Confidential Information;
provided,
however, that these Portal Terms may be disclosed as necessary in connection with a financing or change of control transaction or as otherwise required by legal process.
5. WARRANTY DISCLAIMERS. The Customer Portal is provided “AS IS” on an “AS AVAILABLE” basis without warranty of any kind. Customer assumes sole responsibility and liability for results obtained from the use of the Customer Portal and for conclusions drawn from such use. Model N shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Model N by Customer in connection with the Customer Portal or any actions taken by Model N at Customer’s direction. Model N shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any End User’s use of any third-party products, Customer Portals, software or web sites that are accessed via links from within the Customer Portal.
THE WARRANTIES SPECIFIED IN THIS SECTION ARE EXCLUSIVE. MODEL N EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE CUSTOMER PORTAL AND DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. MODEL N DOES NOT WARRANT THAT THE CUSTOMER PORTAL WILL BE ERROR FREE, MEET CUSTOMER’S SPECIFIC NEEDS, PREVENT UNAUTHORIZED THIRD-PARTY ACCESS, OR THAT USE OF THE CUSTOMER PORTAL WILL BE UNINTERRUPTED.
6. INDEMNIFICATION
6.1 Model N. Model N shall indemnify and defend Customer against and from damages, and reasonable attorneys’ fees, if any, finally awarded, or the amount of the settlement thereof, resulting from claims or suits brought against Customer by third parties arising out of an assertion that the Customer Portal or Documentation infringes any U.S. copyright or patent or is a misappropriation of a trade secret under the laws of the states of the United States.
6.2 Customer. Customer shall indemnify and defend Model N against and from damages, and reasonable attorneys’ fees, if any, finally awarded, or the amount of the settlement thereof, resulting from claims or suits brought against Model N by third parties arising out of an assertion that the Customer Data, or Customer’s use of the Customer Portal or Documentation in violation of these Portal Terms: (i) infringes the intellectual property rights of, or has otherwise harmed, such third party, including, but not limited to, claims arising out of those actions described under Exceptions directly below or (ii) violates applicable law.
6.3 Exceptions. Model N shall have no indemnification obligations under these Portal Terms if and to the extent that third-party claims arise from the Customer Portal or Documentation or portions or components thereof (i) procured by Customer separately from the Customer Portal, (ii) made in whole or in part in accordance with Customer-specific enhancements, (iii) that are modified after delivery by Model N, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
6.4 Procedure. Neither party shall have any indemnification obligations under these Portal Terms unless (i) the indemnifying party is promptly notified in writing of an indemnifiable claim or suit (provided the failure to provide prompt written notice shall only relieve the indemnifying party of its indemnification obligations to the extent it can show that its defense has been materially prejudiced), (ii) the indemnifying party has the sole control of the defense and/or settlement thereof and (iii) the party seeking indemnification furnishes to the indemnifying party, on request, information available to it for such defense. The party seeking indemnification may reasonably reject any settlement that requires an admission of wrongdoing or affirmative obligations and may elect to hire its own attorneys and participate in the defense at its own cost and expense.
6.5 Remedy. In the event that the Customer Portal or Documentation is held by a court or believed by Model N to infringe, Model N shall have the option at its expense to: (i) replace or modify the Customer Portal or Documentation to be non-infringing; (ii) obtain for Customer the rights to continue using the Customer Portal or Documentation; or (iii) discontinue access to and terminate the Customer Portal.
6.6 THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF MODEL N AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE CUSTOMER PORTAL OR DOCUMENTATION.
7. LIMITATION OF LIABILITY7.1 LIMITATION. EACH PARTY’S LIABILITY FOR DIRECT DAMAGES UNDER THESE PORTAL TERMS SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100).
7.2 EXCLUSIONS. THE LIMITATION SET FORTH DIRECTLY ABOVE SHALL NOT APPLY WITH RESPECT TO DAMAGES RESULTING FROM (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; (II) EITHER PARTY’S MATERIAL BREACH OF CONFIDENTIALITY; AND (III) CUSTOMER’S BREACH OF SECTION 2.1 (SERVICE REGISTRATION AND ACCESS) OR SECTION 2.2 (RESTRICTIONS ON USE).
7.3 DISCLAIMER. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THESE PORTAL TERMS (INCLUDING THIRD-PARTY APPLICATIONS), HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4 THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8. TERMINATION8.1 Termination of Use; Discontinuation and Modification of Customer Portal. Customer may cancel its account and terminate these Portal Terms at any time by contacting your customer success manager. Customer’s permission to use the Customer Portal will automatically terminate if you violate any of these Portal Terms. Customer also agrees that Model N may, at any time and without notice to you, suspend or revoke your access to and use of the Customer Portal, and any account(s) you may have in connection with the Customer Portal: (a) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights of Model N or any third party; (b) cancellation of the Customer Portal; or (c) in connection with any general discontinuation of the Customer Portal. Model N also reserves the right to modify the Customer Portal at any time without notice to you. Without limiting the terms of Section 8.2, we will have no liability whatsoever on account of any change to the Customer Portal or any suspension or revocation of your access to or use of the Customer Portal.
8.2 Effect of Termination. Upon termination of these Portal Terms (a) all terms of access and use rights granted shall automatically terminate with immediate effect; (b) Model N shall promptly return Confidential Information belonging to Customer in accordance with this Agreement; and (c) Customer shall promptly return Confidential Information belonging to Model N in accordance with this Agreement.
8.3 Return of Customer Data. Promptly after Customer’s written request following termination or expiration of this Agreement, Model N will make available to Customer for download or via secure media a file of Customer Data in an industry standard format (e.g. CSV, SQL). If Customer makes no such request, Model N reserves the right to remove and/or discard Customer Data without notice sixty (60) days following termination or expiration of this Agreement.
8.4 Survival. Termination of these Portal Terms shall not relieve either party of any obligation or liability accrued prior to the termination date. The parties’ applicable obligations under these Portal Terms with respect to any provision that by its nature must survive termination to fulfill its essential purpose will survive and continue in full force and effect notwithstanding the termination or expiration of
these Portal Terms. 9. MISCELLANEOUS9.1 Modification. Model N may revise these Portal Terms from time to time with prior notice to Customer. By continuing to access or use the Customer Portal after those revisions become effective, Customer agrees to be bound by the revised Portal Terms. If any change is unacceptable to Customer, the only recourse is to terminate the use of the Customer Portal. The continued access and/or use of the Customer Portal following a notification of a change as described above will constitute binding acceptance of the change.
9.2 Links to Third Party Websites or Resources. The Customer Portal may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. Customer acknowledges sole responsibility for and assumes all risk arising from, your use of any third-party websites or resources.
9.3 No Assignment. Neither party may assign or transfer its rights and obligations under these Portal Terms without prior written approval of the other party, except that either party may, upon written notice to the other party, assign these Portal Terms to an Affiliate of such party or to a third party that acquires all or substantially all of its business and assets provided such third party is not a competitor of the other party (a “
Permitted Assignment”). In the event of a Permitted Assignment by Customer, in no event shall such assignment be construed to expand the scope of use of the Customer Portal beyond the intended use hereunder applicable to the assigning entity.
9.4 Force Majeure. Neither party will be in default by reason of any failure in performance of these Portal Terms if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including acts of God or of the public enemy, terrorism, U.S. or foreign governmental acts in either a sovereign or contractual capacity, national referendum, fire, flood, epidemic, restrictions, strikes, and/or freight embargoes.
9.5 No Waiver. Any failure by either party to detect, protest, or remedy any breach of these Portal Terms will not constitute a waiver or impairment of any such term or condition, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. A waiver can only occur pursuant to the prior written express permission of an authorized officer of the other party.
9.6 Notices.
Any notices or other communications provided by Model N under these Portal Terms, including those regarding modifications to these Portal Terms, will be given: (i) via email; or (ii) by posting to the Customer Portal. For notices made by e-mail, the date that the email was sent will be deemed the date on which such notice is transmitted.9.7 Severability. If any provision of these Portal Terms is held to be invalid, void or unenforceable by a court of competent jurisdiction or a panel of arbitrators, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of these Portal Terms shall remain in full force and effect.
9.8 Non-Solicitation of Personnel. During the term of these Portal Terms, and for a period of one (1) year thereafter, neither party will directly (or indirectly through an agency or third-party recruiter or search firm) solicit the employees of the other party without the prior written consent of such other party;
provided,
however, this Section shall not prohibit either party from hiring any person who responds to a general advertisement, including job postings in trade publications, periodicals, internet websites, or efforts not specifically directed at employees of the other party.
9.9 Governing Law. These Portal Terms shall be deemed to have been made in and shall be construed pursuant to the laws of the State of California without regard to conflict of laws principles thereof and without regard to the U.N. Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of California.
9.10 Arbitration. Any and all disputes, claims or causes of action, in law or equity, including, without limitation, claims arising out of or related to the parties’ negotiations and inducements to enter into these Portal Terms, enforcement, breach, performance or interpretation of these Portal Terms will be submitted to mandatory, binding arbitration under the auspices of the American Arbitration Association, or its successors, under its then-current commercial arbitration rules and procedures.
Both parties acknowledge that by agreeing to arbitration, they waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. Nothing in these Portal Terms is intended to prevent either party from seeking injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration;
provided,
however, that the arbitrator(s) may, in its discretion, award costs and fees to the prevailing party. These Portal Terms is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.