7 Predictive Search Bidding Partner Agreement
(last revised on May 8, 2019)
7 may revise the terms of this Agreement from time to time. 7 will post the revised Agreement on the 7 website (“Website”) with a “last revised” date. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TMIELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES (DEFINED IN AN APPLICABLE ORDER FORM) AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT. Partner agrees that 7 shall not be liable to Partner or to any third party including without limitation, End User, for any modification of this Agreement.
Partner agrees to pay all fees set forth in an applicable Order Form. Unless otherwise indicated on an Order Form, all fees are billed monthly in arrears and payment is due in full net 30 days from date of invoice. All fees are exclusive of, and Partner is responsible for, applicable federal, state, provincial, or other sales, use, excise, withholding or other applicable taxes other than taxes on the net income of 7. Partner shall pay or reimburse 7 for any such taxes and 7 may add any such taxes to invoices submitted to Partner by 7. All payments are due in United States Dollars, by wire transfer, and are non-refundable. 7 reserves the right to charge interest to any unpaid balance once it is past due at the rate of two percentage (2%) points above the then-current Citibank prime rate per month (but in no event more than the maximum rate allowed by applicable law).
This Agreement is effective beginning on the applicable Order Form Effective Date until the later of the end of the last Initial Term or Renewal Term for Services in an applicable Order Form. Services are as set forth in an applicable Order Form and include without limitation: (a) Platform Test, (b) Platform Evaluation, (c) Platform, and (d) Platform Account Management. Each Initial Term for Platform (defined in an Order Form) will automatically renew for additional successive twelve (12) month periods (each a “Renewal Term”) unless: (i) otherwise expressly stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Initial Term for Platform. Pricing for any Renewal Terms will be at 7’s then applicable rates.
Either party may, at its option, terminate this Agreement upon written notice to the other party if the other party materially fails to comply with any of the terms or conditions of this Agreement (including an Order Form) and such default is not cured by the defaulting party within thirty (30) days after receipt of written notice from the non-defaulting party. In the case of 7’s termination for Partner’s breach, it shall be it 7’s sole discretion to decide if any Order Forms which are not yet otherwise terminated at such time should remain in effect. 7 may at its sole option, terminate this Agreement and/or an Order Form, with or without cause, by providing Partner with at least sixty (60) days prior written notice of its intention to so terminate. Termination shall not affect the obligation of Partner to make payments for any amounts due at the time of such termination (or which continue to be due for any Order Forms which have not yet terminated). Sections 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20 shall survive termination or expiration of this Agreement and/or any Order Form for any reason. All payment obligations incurred prior to termination or expiration of this Agreement for any reason shall become immediately due and payable. Upon any termination or expiration of this Agreement all licenses granted to Partner shall automatically cease. Within thirty (30) days after any termination or expiration of this Agreement, a party shall destroy or return to the other party, and shall make no further use of, any Confidential Information or other property or materials of the other party, and shall certify in writing to, that the originals and all copies, in whole or in part, in any form, of such Confidential Information in the party’s possession or control have been destroyed or returned to the other party. 7 SHALL NOT BE LIABLE TO PARTNER FOR TERMINATING THIS AGREEMENT AND/OR AN ORDER FORM IN ACCORDANCE WITH THIS SECTION. In addition, Partner shall not be entitled to any compensation, damages or payments with respect to goodwill that has been established or for any damages on account of prospective or anticipated profits, and shall not be entitled to reimbursement of any amount for any training, advertising, market development, investments, leases or other costs that shall have been expended by Partner before the non-renewal or termination of this Agreement and/or an Order Form. Without limiting the foregoing, Partner hereby waives any right it may have under applicable laws to any indemnity, damages, or compensation on account of the non-renewal or termination of this Agreement and/or an Order Form by 7 in accordance with the terms of this Agreement.
Both parties agree not to provide or otherwise disclose any Confidential Information (as defined herein) to any person other than employees of Partner who have a need to use such Confidential Information for the implementation of this Agreement. Each party shall not use any Confidential Information for any purpose not expressly permitted by this Agreement. Each party shall protect all Confidential Information from unauthorized use, access, or disclosure in the same manner as the party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Each party shall not provide the Confidential Information to any third party without the other party’s prior, written consent. Each party shall promptly return all Confidential Information to the other party (i) after termination of this Agreement, or (ii) upon receipt by a party of written notice from the other party requesting return of such Confidential Information. Each party further agrees that it will not remove or destroy any copyright or other proprietary rights notices from the Confidential Information. “Confidential Information” means the party’s confidential and proprietary information concerning its business, including ideas, inventions, and data, as well as proprietary trade secrets and/or other technical, marketing, financial, employee, and planning (including proposed new products) information of the party, whether identified as Confidential Information or not, and in the case of 7, includes the 7 Platform and Documentation. The receiving party may disclose the Confidential Information without the disclosing party’s prior written consent only to the extent the receiving party can document that such Confidential Information is: (a) already known to the receiving party prior to the disclosure hereunder; (b) already in possession of the public or becomes available to the public other than through the act or omission of the receiving party in breach hereof; (c) required to be disclosed under applicable law or by a governmental order, decree, regulation or rule (provided that the receiving party shall give written notice to the disclosing party prior to such disclosure); (d) acquired independently from a third party that, to the knowledge of the receiving party, has the right to disseminate such information at that time it is acquired by the receiving party; or (e) independently developed by the receiving party without knowledge of or reliance on the Confidential Information disclosed by the disclosing party.
Ownership of all worldwide right, title and interest (including ownership of all patents, trade secrets, copyrights and other intellectual property rights) in and to the originals and any copies, modifications or enhancements, in whole or in part, of the (i) 7 Platform, (ii) data generated through the 7 Platform (“Platform Data”) including but not limited to survey data, web journey data, outputs and metadata generated through the 7 Platform, and (iii) Documentation, including translations, compilations, partial copies, modifications Feedback (as defined below), and updated works, is deemed to be 7 intellectual property and shall be and shall remain the sole property of 7. Partner acknowledges that the license granted pursuant to this Agreement does not provide Partner with title or ownership of the 7 Platform, Platform Data, or Documentation. Partner shall keep the 7 Platform, Platform Data, and Documentation, free and clear of all claims, liens and encumbrances. Partner acknowledges that, due to the nature of the 7 Predictive Experience Platform, 7 collects information (including Platform Data) related to the access and use of the 7 Platform by a Partner’s customer and may disclose such information internally in aggregate or other anonymized form in connection with 7’s support, development, marketing and other business activities. For the avoidance of doubt, Platform Data excludes all data provided by Partner (including personally identifiable information of End User or End User’s customers). All rights in and to the 7 Platform, Platform Data, and Documentation, not expressly granted to Partner in Section 2 are reserved by 7 and its licensors. Partner acknowledges that, due to the nature of 7’s predictive service, 7 collects information (including Platform Data) related to a Partner’s access and use of the 7 Platform and may disclose such information internally in aggregate or other anonymized form in connection with 7’s support, development, marketing and other business activities. For the avoidance of doubt, Platform Data excludes all data provided by Partner (including personally identifiable information of Partner, End User, or End User’s customers). Partner and End Users may from time to time submit comments, information, questions, data, ideas, description of processes, or other information to 7 (“Feedback”). 7 may in connection with the 7 Platform, Platform Data, and Documentation, or any of its other products or services, use, copy, disclose, license and distribute any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
Partner represents and warrants that it (a) has all necessary right, power and authority to enter into this Agreement; (b) owns or has obtained all rights to use the hardware and/or software products it intends to use with the 7 Platform, including those third party hardware and/or software products listed in any SOW that Partner must procure separately; (c) will maintain a staff of sales and technical support personnel sufficient to meet the needs of its End Users and potential customers and will ensure that each such personnel is properly trained with regard to the 7 Platform; (d) has the authority as the agent to End User to bind End User to this Agreement and each SOW; and (e) will use the 7 Platform, Documentation, and any services provided by 7 hereunder in accordance to this Agreement and the applicable SOW and will not provide End User access to the 7 Platform. “Documentation” means the product documentation or any other 7 proprietary documentation furnished to Partner by 7 (if any) for the 7 Platform.
THE 7 PLATFORM IS PROVIDED “AS IS” AND 7 MAKES NO OTHER PROMISES, REPRESENTATIONS, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR THE 7 PLATFORM, DOCUMENTATION, OR ANY SERVICES PROVIDED BY 7 HEREUNDER, INCLUDING THEIR CONDITION, THEIR CONFORMITY TO ANY REPRESENTATION, WARRANTY, OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND 7 SPECIFICALLY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES
Partner agrees to defend, indemnify and hold harmless 7 and its officers, employees, and agents, from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any End User) resulting from or relating to (a) any breach by Partner of its obligations, duties, or responsibilities under this Agreement; (b) any actions or omissions on the part of Partner in marketing or distributing the 7 Platform or the Partner Products; (c) any representations, warranties or guarantees, or other written or oral statements, made by or on behalf of Partner to any third party with respect to the specifications, features or capabilities of the 7 Platform or 7 services other than as authorized by 7 in writing or made in the Documentation; (d) any claims against 7 made by End Users who receive the 7 Platform or 7 professional services from Partner; (e) any breach by an End User who receives the 7 Platform from Partner; (f) use of other than a current unaltered release of the 7 Platform; (g) the combination, operation or use of any 7 Platform furnished hereunder with hardware, software, or data, not provided by 7 (including Partner Products); (h) modification of the 7 Platform by any person other than 7 or its authorized contractors; (i) any unauthorized use, reproduction, or distribution of the 7 Platform by Partner or its End Users; (j) any method or process in which the 7 Platform is used, if such infringement would have been avoided but for the use of the 7 Platform in such method or process; (k) 7’s compliance with Partner’s specifications, standards, instructions, Documentation or design;(l) any hardware, software, or data not provided by 7; (m) any hardware or software not owned by 7.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE 7 PLATFORM, DOCUMENTATION, OR ANY SERVICES PROVIDED BY EITHER PARTY HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND UNDER ANY CAUSE OF ACTION (INCLUDING NEGLIGENCE). 7’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE 7 PLATFORM, DOCUMENTATION, AND ANY SERVICES PROVIDED BY 7 HEREUNDER, UNDER ANY CAUSE OF ACTION (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE AMOUNT OF FEES PAID TO 7 BY PARTNER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM AROSE, BUT IN ANY EVENT NO AMOUNT EXCEEDING USD $100,000. No suit or action may be brought or arbitration demanded by Partner for any dispute arising out of or in connection with this Agreement, the 7 Platform Documentation, or any services provided by 7 hereunder, at any time more than twelve (12) months after the facts giving rise to the cause of action or dispute first arose. Partner is responsible for the selection of the 7 Platform to satisfy its requirements, and for the data and other results obtained from the operation of the 7 Platform. 7 will have no liability to Partner in connection with the use or inability to use the 7 Platform, Documentation, or any services provided hereunder by 7, or with the data or other results obtained from the operation of the 7 Platform. Partner acknowledges that the fees set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that 7 would not enter into this Agreement without these limitations on its liability. Partner agrees that 7’s licensors will have no liability of any kind under or as a result of this Agreement. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
7 provides Partner-side security controls that Partner will evaluate for applicability based on the agreed upon relationship between Partner and 7 and the specific contexts of Partner’s situation. Partner agrees to evaluate the risks associated with its system architecture in connection with implementation of any services provided by 7, and to consider whether the use of security measures within its control, including but not limited to content security policies, firewalls or other measures, would be advisable to maintain security of the system. Partner agrees to consider and, where appropriate, utilize compensating controls as prescribed by the National Institute of Standards and Technology (“NIST”) as additional layers of protection. Partner assumes full responsibility for, and releases 7 from any liability associated with, security incidents and/or data breaches that would not have occurred (or if occurring, would not have caused harm) had Partner implemented such security measures. Partner agrees that security of all Partner’s devices, software, and systems is the sole responsibility of Partner.
All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and to their respective permitted successors and assigns and legal representatives. Either party may not assign any of its rights under this Agreement or delegate any of its obligations under this Agreement, whether in whole or in part, or by operation of law or otherwise, to any third party, without the other party’s prior written consent; provided that 7 may assign this Agreement in its entirety without consent to a successor in interest so long as such successor assumes all rights, duties, and obligations of 7 and has the means to fulfill all of 7’s obligations under this Agreement.
The waiver of any particular breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. All waivers must be in writing. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
7 shall have the right to name Partner and use Partner’s logo in 7 marketing presentations and on the 7 website. The parties shall have the right to announce their relationship, subject to mutual approval of announcement material. Partner may not use 7’s name, trademark, or logo without the prior written consent of 7.
Neither party shall be responsible for any failure to perform its obligations (other than payment obligations) under this Agreement due to reasons beyond its reasonable control, including without limitation to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism, fire, floods or accidents.
Partner’s relationship to 7 is that of an independent contractor, and neither party is an agent or partner of the other. Partner will not have, and will not represent to any third party that it has, any authority to act on behalf of 7.
This Agreement and any action arising out of or relating thereto shall be governed by the laws of California, without regard to the principles of conflicts of law and shall be brought exclusively in the federal or state courts located in Santa Clara County, California. Each party irrevocably consents to jurisdiction and venue in such courts and waives all objections to proceeding therein, including claims of forum non conveniens.