Haus Terms of Service
These Terms of Service (these “Terms”) govern the Order Form (defined below) and the related documents and exhibits entered into between Haus Analytics Inc. (“Haus”) and the Customer listed on the Order Form (the “Customer”). These Terms govern Customer’s access to or use of the Offerings (defined below). Customer and Haus are referred to in this Agreement individually each as a “Party” and together as the “Parties.”
1. DEFINITIONS
Capitalized terms used in these Terms will have the below meanings.
1. “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person. The term “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting interests, by contract or otherwise.
2. “Agreement” means these Terms along with all schedules, exhibits and addenda incorporated into these Terms, including the Product-Specific Terms and the Beta and Trial Terms, entered into by the Parties and as amended or modified from time to time.
3. “Applicable Data Protection Laws” means any data protection, privacy, or data security laws, rules or regulations applicable to Haus’ provision or Customer’s use of an Offering.
4. “Applicable Law” means any of the following that relate to the access or use of an Offering: (a) any statute, legislation or regulation having the force of law that is issued by any governmental entity of local, municipal, regional, national or international authority having jurisdiction and binding authority over the applicable Party; (b) any treaty, multinational convention or the like having the force or law and that is binding on the applicable Party; (c) the common or general law; (d) any court order, judgment or decree that is binding on the applicable Party; (d) any applicable industry code, policy or standard enforceable by law that is binding on the applicable Party; or (e) any applicable direction, policy or order that is given by a regulator having binding authority on the applicable Party; and (f) any subsequent amendments, re-enactments, consolidations, replacements or new implementations of the foregoing.
5. “Authorized Users” means identified individuals (such as individual employees, consultants and contractors performing work on Customer’s behalf and other individuals accessing and using an Offering for Customer’s benefit) authorized by Customer to access or use an Offering.
6. “Campaign Recommendations” means any data, information or other recommendations regarding the structuring, operation, performance, optimization, analysis or other adjustment of Customer’s digital advertising campaigns or any experiments or tests related to the foregoing, in all cases that are provided by or on behalf of Haus to Customer as part of Offerings.
7. “Change Order” means a written change order to an SOW executed by both Parties.
8. “Confidential Information” means any information and documentation of a Party or its Affiliates disclosed to or accessed by the other Party in connection with this Agreement that is (a) marked or verbally designated as “confidential” or the like or (b) that given the circumstances surrounding its disclosure or the nature of the information a reasonable person would conclude to be confidential. Confidential Information does not include (i) any information that (1) becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, (3) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, or (4) was independently developed by the Receiving Party, or (ii) any Feedback. Without limiting the foregoing, Haus’ Confidential Information includes the non-public aspects of and information regarding (A) any Offerings and any related product plans, technology, data and other technical information (including Documentation, the structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of any of the foregoing) and (B) business negotiations with Customer with respect to this Agreement.
9. “Customer Campaign Data” means any end-user data or individual-level operations data from Customer’s digital advertising campaigns (including device data and click-, view-, impression-, and viewability- data).
10. “Customer Data” means any data, information or other material provided or otherwise made available to Haus by or on behalf of Customer in connection with an Offering (for clarity, including Customer Campaign Data that is provided or otherwise made available to Haus by or on behalf of Customer in connection with an Offering).
11. “Data Processing Addendum” means the Haus data processing addendum set forth in Exhibit A.
12. “Deliverable” means any deliverable developed by Haus in performance of Professional Services and delivered to Customer under an SOW.
13. “Deliverable Notice” has the meaning set forth in Section 8.3.
14. “Disclosing Party” has the meaning set forth in Section 11.1.
15. “Dispute” has the meaning set forth in Section 14.17.
16. “Documentation” means any documentation (including online, printed or other documentation) and any technical or legal requirements for an Offering. Documentation may be made available to Customer through the Site.
17. “Feedback” means any improvements, suggestions or other feedback concerning the Offerings or the Site.
18. “Fees” means the amounts payable by Customer to Haus under the terms of this Agreement or the Order Form.
19. “Force Majeure” has the meaning set forth in Section 14.2.
20. “Haus Data” means any data and information provided or otherwise made available by or on behalf of Haus, its licensors and service providers, or their respective data providers in connection with Online Services or Professional Services. Haus Data includes Campaign Recommendations but, for clarity, excludes Customer Data.
21. “Offering” means Online Services and Professional Services made available by or for Haus and any information, data, tools, materials, services and rights made available to Customer by or for Haus in connection with the foregoing, including Haus Data and Documentation.
22. “Online Services” means an online or cloud-based service or feature made available by or for Haus, whether made available for free, as part of a subscription, as an update or upgrade, for a fee or any other basis.
23. “Order Form” means the written agreement for the purchase and provision of Offerings to Customer that is executed by the Parties in connection herewith.
24. “Person” means any individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture or unincorporated organization.
25. “Personal Information” means any data that identifies, relates, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or is defined as “personally identifiable information,” “personal information,” “personal data” or similar terms under Applicable Data Protection Laws.
26. “Policies” means all policies and guidelines made available by Haus to Customer, including the Privacy Policy and the Data Processing Addendum.
27. “Privacy Policy” has the meaning set forth in Section 4.
28. “Professional Services” means any implementation and other professional services provided by or for Haus to Customer under an SOW.
29. “Receiving Party” has the meaning set forth in Section 11.1.
30. “Sensitive Personal Information” means Social Security number, credit or debit card number, financial account number, driver’s license or other governmental ID number, medical information, health insurance information, information related to race or ethnic origin, religion or other beliefs, political affiliation or opinions, genetic or biometric data, criminal background, Protected Health Information (“PHI”), sexual orientation, trade union membership, or any other information that may pose a risk of harm to an individual if improperly accessed, disclosed or used.
31. “Site” means, collectively, the Haus websites, including the website at haus.io and any other websites related to the Offerings.
32. “Statement of Work” or “SOW” means a statement of work for the purchase and provision of Professional Services to Customer that is executed by the Parties as part of the Order Form.
33. “Term” has the meaning set forth in Section 13.1.
34. “Third-Party Services” means any software, information, data, tools, materials, services and rights made available by a third party in connection with an Offering.
35. “Third-Party Terms” has the meaning set forth in Section 7.4.
36. “Updates” means security and hot fixes, patches and other updates to the extent made available to Customer by or for Haus as an update.
37. “Upgrades” means new versions of Offerings, or add-ons or additional products associated with Offerings, to the extent made available to Customer by or for Haus as an upgrade.
38. “Usage Data” means data and information regarding, gathered through or otherwise generated from access to and use of any Offerings.
39. “Work Product” means all software, tools, materials, works of authorship, information, data, ideas, inventions and other innovations of any kind, including any Deliverables, Documentation or other materials, and any improvements or modifications to the foregoing, that Haus, or personnel working for or through Haus, may author, invent, conceive, create, develop or reduce to practice, alone or jointly with others, in the course of performing the Professional Services or as a result of such Professional Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection.
2. SCOPE
2.2 Acceptance. Customer agrees to this Agreement on behalf of the company or other legal entity for which Customer is acting (for example, as an employee or contractor). Customer represents and warrants that it has the right, authority and capacity to act on behalf of and bind such entity.
2.3. Scope of Terms. This Agreement governs the access to or use of the Offerings by Customer. Unless expressly agreed otherwise in writing between the Parties, this Agreement will be incorporated by reference into and govern the Order Form. The Parties hereby incorporate by reference all schedules, exhibits and addenda attached to or otherwise referenced in this Agreement into this Agreement, including the Product-Specific Terms and the Beta and Trial Terms as made available to Customer by Haus (including via email or in the Customer’s account), and in each case as may be amended and modified from time to time by Haus in accordance with Section 14.12. The access to and use of certain Offerings are subject to additional terms set forth in the Product-Specific Terms, Beta and Trial Terms, the Documentation or Policies.
3. Other Documents. The Order Form will be governed exclusively by the terms and conditions of this Agreement. Any purchase order, order receipt, acceptance, confirmation, correspondence, online terms or other confirmatory documents presented by Customer at any time will be deemed to be presented for payment purposes only. Haus hereby rejects, and will not be bound by, any additional or different terms contained in such documents. Unless otherwise expressly agreed in a writing between the Parties that references the modification of this Agreement, the terms of the Order Form will take precedence over any conflicting or inconsistent term in this Agreement (including any applicable Product-Specific Terms and Beta and Trial Terms), but only with respect to the specific Offerings purchased by Customer under the Order Form. The terms of any applicable Product-Specific Terms and Beta and Trial Terms will take precedence over any conflicting or inconsistent term in these Terms only with respect to the specific Offering that is accessed or used by Customer pursuant to such Product-Specific Terms or Beta and Trial Terms.
3. ACCOUNT
3.1. Customer Accounts. Customer is responsible for anyone who purchases, accesses or uses Offerings through Customer or Customer’s account credentials (including all Authorized Users), and any act or omission of any such person that is not in compliance with this Agreement will constitute an act or omission by Customer. Customer is responsible for safeguarding its account credentials and will not disclose its account credentials to any third party. Customer will notify Haus promptly of any actual or suspected unauthorized access to or use of its account or the accounts of any Authorized Users. If Customer’s account is canceled, terminated or suspended, Customer and, if applicable, any Authorized Users, will lose the ability to access and use such account and any Customer Data that Customer has uploaded or stored using any Offerings. Haus may immediately delete such Customer Data at the time of cancellation, termination or suspension of Customer’s account and Haus will not be liable to Customer or any third party in connection with such deletion of Customer Data or Customer’s loss of access and use of such account.
3.2. Customer Account Information. Any account information Customer provides to Haus must be materially accurate, current and complete, and Customer will update such information to keep it materially accurate, current and complete. Haus reserves the right to suspend or terminate Customer’s account and access to and use of the Offerings if any account information Customer provides to Haus proves to be inaccurate, not current or incomplete.
4. PRIVACY. Haus’ Privacy Policy (available at https://www.haus.io/privacy-policy) sets forth how Haus may collect, use, store and otherwise process Personal Information relating to Customer’s personnel and the rights of Customer’s personnel with respect to their Personal Information (“Privacy Policy”). Customer acknowledges that it has read and understands the Privacy Policy.
5. DATA
5.1. Data Processing Addendum. Unless otherwise expressly stated in this Agreement, to the extent that any data provided by Customer to the Haus constitutes Personal Information, Customer agrees that the Data Processing Addendum applies in addition to the terms of this Section 5 for each Offering.
5.2. Customer Data. In order for Customer to access and use certain Offerings, or for Haus to provide Customer with certain services, Customer may provide Customer Data to Haus. When Customer provides or makes accessible Customer Data to Haus, Customer hereby grants a non-exclusive, transferable (in accordance with Section 14.7), worldwide, royalty-free and fully paid-up right and license to Haus and its designees to use, reproduce, modify, perform and display, and distribute and make available the anonymized and aggregated results of any analysis of Customer Data solely in order to provide, develop, support and improve the Offerings and other Haus services (including, for avoidance of doubt, for use by other customers). For the avoidance of doubt, in no event shall Haus sell any Customer Data to third parties or otherwise make any deanonymized or unaggregated Customer Data available to any third-parties other than as necessary in order to render the services contemplated under this Agreement. Customer (a) is responsible for ensuring that its provision of Customer Data to Haus for its use in connection with any Offering will comply with all Applicable Laws, including Applicable Data Protection Laws, and this Agreement, and (b) represents and warrants that Haus’ receipt or use of Customer Data pursuant to this Agreement will not infringe or misappropriate any intellectual property or proprietary rights of any Person (including privacy or publicity rights) or violate any Applicable Laws, including Applicable Data Protection Laws. Without limiting the generality of the foregoing, Customer represents and warrants that, with respect to Customer Data that constitutes Personal Information, Customer will provide any legally provided notices to and obtain any required consent from any individual whose Personal Information Customer makes available to Haus or that Haus collects or otherwise processes on behalf of Customer pursuant to this Agreement.
5.3. Sensitive Personal Information. Except as expressly requested by Haus in writing, Customer will not upload or otherwise make available to Haus any Sensitive Personal Information, including any files containing Sensitive Personal Information, in connection with Customer’s use of any Offering.
6. PAYMENT
6.1. Fees. Unless otherwise specified in the applicable Order Form, within thirty (30) days of receipt of an invoice from Haus or by the payment date set forth in the Order Form, Customer will pay to Haus all Fees due by the means specified in the Order Form. Unless otherwise specified in the Order Form, all payments under this Agreement will be made in U.S. Dollars. Customer is responsible for any fees associated with payment of Fees, including transaction fees and bank fees.
6.2. Taxes. Payments made under this Agreement will be paid in full without deduction or set-off for any withholding taxes, levies, imports, duties, charges and fees imposed by any governmental taxing authority except as required by law. If Customer is required to make any such deduction, then Customer will pay to Haus such additional amounts as are necessary to ensure Haus’ receipt of the full amount that Haus would have received but for the deduction. Customer will be responsible for, and will pay promptly, all taxes, levies, imports, duties, charges and fees of any kind (including sales, use and withholding taxes) associated with any purchase or Customer’s receipt or use of the Offerings, except for taxes based on Haus’ net income. In the event that Haus is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Haus. Haus reserves the right to collect any applicable sales, use or value added tax.
6.3. Billing. Customer may be asked to provide Haus customary billing information, such as name, company name, billing address and credit card information, either to Haus or its third party payment processor. When Customer provides billing information to Haus or its third party payment processor, Customer (a) represents and warrants that Customer is authorized to provide and use such billing information, and (b) authorizes Haus or its third party payment processor to charge its credit card or otherwise process Customer’s payment for any Offerings or other fees incurred by Customer. If Customer is directed to Haus’ third party payment processor, Customer may be subject to terms and conditions governing use of that third party’s service and that third party’s privacy policy. Customer will review such third party’s terms and conditions and privacy policy before using such services.
6.4. Late Payments. If Customer fails to timely pay any Fees in accordance with Section 6.1, then Haus may (a) suspend Customer’s access to or use of any Offerings until all Fees are paid by Customer upon seven (7) days’ written notice of pending suspension, and (b) charge Customer interest on the overdue amount at the monthly rate of 1.5% or the maximum interest rate permitted by law, whichever is less, for each calendar month that the payment is overdue.
6.5. Subscription Term. The length of Customer’s subscription to each Offering will be indicated in the Order Form. At the end of the subscription term for an Offering, the subscription will automatically renew at the then-current price and terms for the Offering unless otherwise indicated in the Order Form. Haus will provide Customer with thirty (30) days advance written notice of any proposed increase in subscription price in accordance with Section 14.12. If Customer does not cancel a subscription before the end of the current subscription term, Customer’s subscription will automatically renew for the subscription term indicated in the Order Form. Haus may send Customer a reminder notice prior to the renewal date. Unless otherwise expressly provided for under this Agreement, all subscription fees are nonrefundable (except as required by law). Any statutory rights Customer may have under applicable law to cancel its subscription at an earlier time during the renewal term and to request a refund of the subscription fees for the unused part of the renewal period will remain unaffected by this provision.
6.6. Expenses. Customer will reimburse Haus for reasonable out-of-pocket expenses incurred by Haus or its personnel in connection with providing Professional Services
7. ACCESS TO AND USE OF OFFERINGS
7.1. Subject to Customer’s compliance with the terms and conditions of this Agreement, for any Offering consisting of Online Services that Haus makes available to Customer pursuant to the Order Form, Haus hereby grants Customer a non-exclusive, limited, revocable, non-transferable (except as provided in the Order Form), non-sublicensable (except as provided in applicable Product-Specific Terms or in the Order Form) right and license during the term specified in the Order Form to access and use such Offering, and any Documentation for such Offering made available by Haus, solely in the form made available by or for Haus and in accordance with the Documentation for the Offering and applicable Policies. Except as expressly set out in this Agreement or as provided for in the Order Form, Customer will not have any licenses or other rights with respect to such any Offering or any improvements, modifications or derivative works of the foregoing, or other materials or intellectual property rights of Haus, whether by implication, estoppel, statute, or otherwise. Additional rights and obligations that apply to Customer’s access to and use of an Offering may be set forth in the Product-Specific Terms. Customer will be deemed to have taken any action that Customer permits, assists or facilitates any Authorized User or other person or entity to take related to this Agreement or any Offering.
7.2. License Restrictions. Except as expressly permitted in writing by Haus, Customer will not (and will not authorize, encourage or cooperate with any third party to):
7.2.1. Access or use any Offering: (a) by any means other than the interface Haus provides or authorizes; (b) other than in accordance with applicable Documentation or Policies; (c) for immoral, illegal or any other purpose which Haus may determine to be threatening, abusive or harmful; (d) in a manner that may infringe any intellectual property, contractual, proprietary or property right held by Haus or its Affiliates, licensors and service providers; or (e) in violation of any Applicable Law;
7.2.2. Reproduce, modify, adapt, translate, port or create derivative works of all or any portion of any Offering, except as expressly permitted by Applicable Law notwithstanding a contractual prohibition to the contrary;
7.2.3. Sublicense, distribute, transmit, sell, lease, rent, loan or otherwise make available all or any portion of any Offering (including any functionality of any Offering) to a third party or provide any functionality of any Offering to a third party (whether by uploading any materials or content to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service or any other technology or service or otherwise);
7.2.4.Engage in any decompiling, disassembling or other reverse engineering or otherwise attempting to discover, learn or study the structure or organization, underlying algorithms or other internals, protocols, data structures or other externals, or the source code of the Offerings, except as expressly permitted under the applicable law notwithstanding a contractual prohibition to the contrary;
7.2.5. Remove, disable or otherwise limit the effectiveness of any technical protections, including those used by Haus to (a) manage, monitor, control or analyze the installation of, access to, or use of any Offering or (b) protect Haus’ intellectual property rights;
7.2.6. Attempt to probe, scan or test the vulnerability of any Offering or to breach or circumvent any security or authentication measures used by any Offering;
7.2.7. Attempt to circumvent any capacity limits, Authorized User limits, or other license, timing or use restrictions associated with any Offering, or attempt to interfere with Haus’ ability to audit or track such restrictions;
7.2.8. Remove any copyright, trademark, patent, confidentiality or other proprietary rights notice from any Offering, Documentation or related material;
7.2.9. Unbundle the component parts of any Offering for use separate from each other;
7.2.10. Take any action (including the use of any third party software or services) that disables, interferes with, disrupts, burdens or interacts in an unauthorized manner with any part of any Offering (including any related devices, computer systems, servers or networks);
7.2.11. Introduce any viruses, worms, defects, malware or any item of destructive nature through any Offering;
7.2.12. Use the Offerings or Haus Data for competitive analysis (including benchmark testing) to create, train or improve (directly or indirectly) a product or service that substantially replicates any Offering, or to acquire any technical specifications or gain any competitive advantage;
7.2.13. Pre-fetch, cache, index, copy, re-utilize, extract or store any data that is extracted or derived from an Offering via query by Customer;
7.2.14. Use automated means (including “web crawlers,” bots, robots, spiders, scrapers or other types of software or hardware technology) to collect content or information, download materials automatically or otherwise access any Offering;
7.2.15. Provide Customer Data to any Offering that is illegal, hateful, obscene, threatening, incites violence, insulting, defamatory, invasive of privacy or contains graphic violence or is otherwise objectionable to third parties;
7.2.16. Access or use any Offering for activities where the use or failure of the Offerings would reasonably be expected to lead to death, personal injury, or environmental or property damage;
7.2.17. Use any Offering to access any other product or service in a manner that violates the terms of service of such other product or service; or
7.2.18. Engage in any other conduct in connection with any Offering that may harm or otherwise expose Haus or any third party to liability.
If Customer becomes aware of any violation of the foregoing by an Authorized User, Customer will notify Haus immediately in writing of such violation and terminate immediately such Authorized User’s access to the Offering.
7.3 Changes to Offerings. Haus may from time to time modify or substitute an Offering, including the means of controlling access to or use of the Offerings. During the Term, any such changes will be made without additional cost to Customer, and Haus will provide Customer with reasonable advance notice of any such change, in a clear and comprehensive manner and indicating the justified reasons for such change, where required under Applicable Law. If such change materially and negatively impacts Customer’s access to or use of the Offering, Haus will inform Customer reasonably in advance of the nature and timing of the change, and Customer may cancel its subscription to such Offering and will be entitled to a pro rata refund of any prepaid and unused fees for such Offering.
7.4. Third-Party Services. Haus may provide Customer with Third-Party Services in connection with Offerings. Any such Third-Party Services may be governed by different terms found in such Third-Party Services (“Third-Party Terms”). Customer is solely responsible for determining, obtaining and complying with all Third-Party Terms. Haus will have no responsibility for, and makes no representations and warranties regarding, (a) any Third-Party Services or Customer’s access to or use of such Third-Party Services, and (b) Third-Party Terms and Customer’s compliance with such Third-Party Terms.
8. PROFESSIONAL SERVICES
8.1. Performance of Services. Each Statement of Work will describe the scope of services to be provided by Haus, including applicable fees, Deliverables and other requirements. Each Statement of Work (and any subsequent Change Orders) will form a part of the Order Form and will be subject to all the terms and conditions of this Agreement. Subject to the terms and conditions of this Agreement and the applicable Statement of Work, Haus will use commercially reasonable efforts to perform (or cause to be performed) the Professional Services set forth in each Statement of Work and to deliver to Customer Deliverables according to the specifications and schedule set forth in each Statement of Work. Any material changes to any Statement of Work will be effective only if set forth in a Change Order.
8.2. Personnel; On-Site Services. If Haus will send personnel to Customer’s site or a third-party site designated by Customer, Haus will assign employees and subcontractors with suitable qualifications to perform the Professional Services. Haus may replace or change employees and subcontractors. If Haus provides Professional Services at Customer’s site or a third-party site designated by Customer, then Customer will provide: (a) a suitable and safe work environment that is in a clean, lighted, safe and level condition, for Haus’ employees and subcontractors while such employees and subcontractors are on Customer’s premises; (b) adequate power sources, networks, telephone and data lines, and other utilities; and (c) personnel, information, documentation and other material as reasonably required by Haus. While on Customer’s premises, Haus’ employees and subcontractors will comply with reasonable security practices and procedures generally prescribed by Customer.
8.3 Acceptance of Deliverables. Unless expressly stated otherwise in a Statement of Work, Customer will have five (5) days from its receipt of any Deliverable to review and evaluate such Deliverable. If Customer provides Haus with detailed written notice of any material defects or non-conformity (a “Deliverable Notice”) within five (5) days following Customer’s receipt of any Deliverable, then Haus will use commercially reasonable efforts to revise and resubmit a corrected Deliverable to Customer, after which Customer will have five (5) days from receipt to review and evaluate such corrected Deliverable. If Customer again provides a Deliverable Notice to Haus within five (5) days following Customer’s receipt of the corrected Deliverable, then, at Haus’ option, (a) the Parties will repeat the described process or (b) Haus may terminate the portion of the SOW to which such Deliverable relates (and, in the event of such termination, the Parties will discuss in good faith a modification to the applicable fees). If Customer does not provide Haus with a Deliverable Notice within five (5) days following Customer’s receipt of any Deliverable, such Deliverable will be deemed accepted.
8.4. License to Deliverables. Subject to Customer’s performance of its obligations under this Agreement, Haus hereby grants Customer a limited, non-exclusive, non-transferable license to use the Deliverables for the purpose for which they are provided within Customer’s enterprise only and solely for Customer’s internal business purposes. The foregoing license will be perpetual and royalty-free unless otherwise stated in the applicable Statement of Work. For clarity, Deliverables constitute part of Professional Services.
8.5. Ownership of Work Product. Customer agrees that all Work Product will be the property of Haus, and, on behalf of itself and its Affiliates, hereby assigns and agrees to assign to Haus, all right, title and interest Customer or its Affiliates may have or later acquire in and to the Work Product and all intellectual property rights therein. Notwithstanding the foregoing, if Customer or its Affiliates retain any right, title or interest with respect to the Work Product, Customer, on behalf of itself and its Affiliates, hereby grants Haus a perpetual, exclusive, fully paid-up, royalty-free, sublicensable (through multiple tiers), irrevocable license under all applicable intellectual property rights to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, have made, sell, offer to sell, import, and otherwise exploit all or any portion of the Work Product, in any form or media (now known or later developed) and without restriction of any kind. At Haus’ request and expense, Customer will assist and cooperate with Haus in all reasonable respects and will execute documents, give testimony and take further acts as reasonably requested by Haus to acquire, transfer, maintain and enforce its intellectual property rights in and other legal protection for the Work Product.
9. SUPPORT
9.1. Support. Any technical support may be offered by Haus at its sole discretion. Notwithstanding the foregoing, Haus may make available certain support or maintenance for an Offering as set forth in the Order Form or the applicable Product-Specific Terms or Documentation. Haus’ provision of any such support or maintenance is conditioned upon Customer’s reasonably prompt installation of Updates and Upgrades.
9.2. Updates and Upgrades. Haus may make available or deliver to Customer certain Updates or Upgrades to the Offerings in its sole discretion, but has no obligation under this Agreement to do so. Customer is responsible for compliance with Documentation accompanying any such Updates or Upgrades. All Updates and Upgrades are subject to the same license and other terms as to the Offering to which they apply.
10. OWNERSHIP
10.1. Haus’ Proprietary Rights. Haus and its Affiliates, licensors and service providers own and reserve all right, title and interest in and to (a) the Offerings (and any derivative and successor products and services), Haus Data (to the extent Haus Data is not Customer Data), Documentation, and other data, information or material made available to Customer by or for Haus, including any copies of the foregoing and (b) any data, information or materials based on, derived from or otherwise using any of the foregoing (including Usage Data), except for those rights and licenses expressly granted to Customer under this Agreement. Customer will notify Haus promptly if it is notified of, knows of, or has a reasonable belief of an actual, potential or threatened violation of any of Haus’ intellectual property rights and provide all information, resources and cooperation reasonably required by Haus in connection with such violation.
10.2. Customer’s Proprietary Rights. Customer and its Affiliates, licensors and service providers own and reserve all, right, title and interest in and to the Customer Data and the Customer Campaign Data, except for those rights and licenses expressly granted to Haus under this Agreement.
10.3. Customer Feedback. Customer has no obligation to provide Haus with Feedback. If, however, Customer provides any Feedback, then Customer hereby grants to Haus and its designees a worldwide, irrevocable, royalty-free, fully paid-up, sublicensable (through multiple tiers), perpetual right and license to make, use, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise exploit the Feedback without restriction or obligation. Haus and its Affiliates may use Feedback without restriction and without obligation to Customer.
11. CONFIDENTIALITY
11.1. Non-Disclosure and Non-Use. Customer or Haus (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”) in connection with this Agreement. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, other than to: (a) the Receiving Party’s employees, agents, attorneys, financial advisors and consultants who need to know such information to carry out the purposes contemplated by this Agreement on a confidential basis and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth in this Agreement; (b) if Haus is the Receiving Party, to Authorized Users; and (c) if Customer is the Receiving Party, to third parties who need to know such information to carry out the purposes contemplated by this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth in this Agreement if (i) Customer provides prior written notice to Haus and (ii) such third party or its Affiliates do not provide services substantially similar to the Offering to which the Confidential Information relates or are a competitor of Haus. Customer will be liable for the use of Haus’ Confidential Information by any such third party. The Receiving Party will use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as the Receiving Party uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care). The Receiving Party will only use the Disclosing Party’s Confidential Information solely as necessary for the performance of the Receiving Party’s obligations under this Agreement or as otherwise expressly permitted by this Agreement.
11.2. Exceptions. Without limiting Section 11.1, the Receiving Party may use or disclose Confidential Information to the extent (a) expressly approved by the Disclosing Party in writing or (b) the Receiving Party is legally compelled to disclose such Confidential Information provided. Prior to any such legally compelled disclosure, the Receiving Party will give the Disclosing Party reasonable advance notice of any such disclosure and will cooperate with the Disclosing Party in protecting against any such disclosure and, if applicable, obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. For the avoidance of doubt, any Confidential Information disclosed pursuant to Section 11.2(b) shall continue to be subject to the restrictions set forth herein for all purposes other than such legally compelled disclosure.
11.3. Injunctive Relief. Without prejudice to any other rights or remedies that the Receiving Party may have under this Agreement or at law, the Receiving Party acknowledges and agrees that, due to the nature of the Confidential Information, any threatened or actual breach of its confidentiality obligations would result in irreparable and continuing damage to the Disclosing Party for which there would be no adequate remedy in damages and accordingly the Disclosing Party will be authorized and entitle to injunctive and other equitable relief in addition to any damages or other remedy to which it may be entitled.
11.4. Other Agreements. This Section 11 will not cancel, terminate, or modify any nondisclosure or confidentiality agreements previously entered into by the Parties. The use and disclosure of Confidential Information shared in connection with this Agreement will be governed by the confidentiality terms of this Agreement and nothing in the previously entered agreements will limit the license or other rights granted to either Party in connection with access or use of the Offerings and related data.
12. Disclaimers; Limitations of Liability; Indemnification
12.1. Disclaimers. THE OFFERINGS ARE PROVIDED BY HAUS ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTHER THAN ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET OUT IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, HAUS AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE OFFERINGS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, TITLE, NON-INFRINGEMENT, INTERFERENCE WITH QUIET ENJOYMENT, IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY UNDERTAKINGS. HAUS DOES NOT WARRANT THAT THE OFFERINGS OR ACCESS TO OR USE THEREOF WILL OPERATE UNINTERRUPTED OR WITHOUT DELAY OR BE ERROR FREE OR FREE FROM CORRUPTION, ATTACK, VIRUSES, INTERFERENCE OR OTHER SECURITY INTRUSION, OR THAT ALL DEFECTS WILL BE CORRECTED. HAUS MAKES NO WARRANTY CONCERNING ACCURACY, AVAILABILITY, INTEGRITY, TIMELINESS OR COMPLETENESS OF ANY RESULTS, DATA OR INFORMATION UTILIZED, STORED OR TRANSMITTED AS PART OF THE OFFERINGS, OR OBTAINED OR DERIVED THROUGH THE ACCESS TO OR USE OF THE OFFERINGS. CUSTOMER ACKNOWLEDGES THAT THE OFFERINGS ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN SUCH RESULTS, DATA OR INFORMATION COULD LEAD TO INJURY, ILLNESS, DEATH, PERSONAL INJURY, BUSINESS INTERRUPTION OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. HAUS MAKES NO WARRANTY THAT THE OFFERINGS WILL MEET CUSTOMER’S NEEDS AND REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT ACCESS TO OFFERINGS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET AND ELECTRONIC COMMUNICATIONS. HAUS IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES OR DAMAGE THAT MAY RESULT FROM SUCH PROBLEMS. UNLESS OTHERWISE STATED EXPRESSLY IN WRITING, HAUS WILL HAVE NO OBLIGATION TO SUPPORT, OR BE LIABLE IN ANY WAY FOR, ANY VERSION OF THE OFFERINGS OTHER THAN THE CURRENT VERSION AND IMMEDIATELY PRIOR RELEASED VERSION OF THE OFFERINGS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS DEVICES, COMPUTERS OR LOSS OF DATA THAT RESULTS FROM ITS ACCESS TO AND USE OF THE OFFERINGS.
12.2 Limitations of Liability. IN NO EVENT WILL HAUS OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND SERVICE PROVIDERS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; LOSS OF PROFITS OR REVENUE; BUSINESS INTERRUPTION OR LOSS OF USE; LOSS OF DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER COVER; OR DAMAGES RESULTING FROM FORCE MAJEURE. HAUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OFFERING WILL NOT EXCEED THE GREATER OF (A) THE AMOUNTS PAID BY CUSTOMER TO HAUS FOR THE RELEVANT OFFERING UNDER THE ORDER FORM IN THE THREE (3) MONTHS BEFORE THE DISPUTE, AND (B) ONE HUNDRED DOLLARS ($100.00). THE LIMITATIONS ON LIABILITY IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNIFICATION, RECOURSE, STATUTE OR OTHERWISE, AND EVEN IF HAUS OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, LICENSORS AND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY OR THE LIABILITY IS OTHERWISE FORESEEABLE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NOTHING IN THIS AGREEMENT PURPORTS TO RESTRICT OR EXCLUDE HAUS’ LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY HAUS’ WILLFUL INTENT OR GROSS NEGLIGENCE OR (B) CUSTOMER’S DAMAGES OR LOSSES CAUSED BY HAUS’ FRAUD.
12.3. Indemnification. Customer will, at Customer’s expense and at Haus’ option, defend, indemnify and hold harmless Haus and its Affiliates, partners, licensors and service providers and each of their officers, employees, independent contractors and agents (collectively, the “Haus Indemnified Parties”) against any claim, suit or proceeding (“Claim”) arising out of or relating to: (a) Customer’s or any of its Authorized Users’ access to or use of Offerings; (b) Customer’s breach (or any acts or omissions that, if true, would be a breach) of this Agreement; and (c) Customer’s breach or alleged breach of any Applicable Law. Customer may not enter into a settlement under this Section 12.3 without Haus’ prior written approval. Haus will provide Customer (i) prompt written notice of, and (ii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such Claim.
13. Term; Termination; Suspension
13.1 Term. The term of this Agreement will remain in effect until expiration or termination in accordance with these Terms (the “Term”). This Agreement will remain in effect during the term set forth in the Order Form (and for any subsequent renewals thereof in accordance with these Terms). For clarity, the term of the Order Form will be set forth in the Order Form.
13.2. Termination.
13.2.1. For Breach. Either Party may terminate this Agreement and the Order Form if the other Party is in material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of the breach. Notwithstanding the foregoing, Haus may (a) terminate this Agreement and the Order Form if Customer is in material breach of its obligation to pay Fees and Customer fails to cure such breach within seven (7) days after written notice of the breach, and (b) terminate immediately the Order Form upon written notice to Customer if Haus reasonably believes Customer is failing to comply with its obligations under Section 7.2.
13.2.2. For Insolvency or Change of Control. Either Party may terminate this Agreement and the Order Form upon written notice to the other Party if the other Party: (a) becomes subject to bankruptcy or insolvency proceedings; (b) becomes insolvent, makes an arrangement with or affecting its creditors (including an assignment for the benefit of a creditor) to commence a process of liquidation; (c) has a receiver or trustee appointed; (d) ceases or threatens to cease into carry on business; or (e) claims the benefit of any statutory moratorium. Haus may terminate this Agreement in connection with the sale of its business, whether by a sale of assets, sale of stock, reorganization, merger or otherwise.
13.2.3. Effect of Termination or Expiration. Except as may be expressly provided in the Order Form, upon expiration or termination the Order Form and/or this Agreement, Customer’s rights with respect to the applicable Offerings will end. Except as may be expressly provided in the Order Form, immediately upon expiration or termination of the Order Form or this Agreement, Customer will: (a) stop all access to and use of the applicable Offerings; and (b) uninstall and destroy any and all copies of any Documentation, tools, materials, services or information made available by Haus in connection with or as part of the applicable Offerings. At Haus’ request, Customer will certify in writing to Haus its compliance with the provisions of this Section 13.2.4. Customer will remain liable for all fees and charges for the Offerings.
13.2.4. Survival. The following sections of this Agreement, and any other sections and provisions of this Agreement and the Order Form which by their nature must survive for interpretation or enforcement of this Agreement, will survive expiration or termination for any reason: Section 1 (Definitions), Section 7.2 (License Restrictions), Section 8.4 (License to Deliverables), Section 8.5 (Ownership of Work Product), Section 10 (Ownership), Section 11 (Confidentiality), Section 12 (Disclaimers; Limitations of Liability; Indemnification), Section 13.2.4 (Effect of Termination or Expiration), Section 13.2.5 (Survival) and Section 14 (General).
13.3. Suspension.
13.3.1. Suspension of an Offering. Haus may suspend Customer’s right to access or use any portion or all of any Offering immediately upon notice to Customer if Haus determines, in its sole discretion, to suspend provision of such Offering on a general and temporary basis (including for scheduled maintenance). Haus will use reasonable efforts to notify Customer in advance of any such suspension.
13.3.2. Suspension for Cause. In addition to and without limiting Haus’ suspension rights under Section 3.2 and Section 6.3, Haus may suspend Customer’s right to access or use any portion or all of any Offering if Haus believes in good faith that Customer’s conduct or failure to act: (a) may pose a security risk or otherwise adversely impact Offerings, systems or other users; (b) constitutes or enables tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections; (c) may subject Haus or its Affiliates, licensors and service providers to liability; (d) constitutes a breach of Section 7.2; or (e) Customer is more than thirty (30) days overdue on any payment obligation under this Agreement in accordance with Section 6.3. In the event of any such suspension, Haus will provide promptly Customer with notice of the suspension and a reasonably detailed explanation of the reason for such suspension. Haus will use commercially reasonable efforts to re-establish Customer’s access to such Offering after Haus determines, in its sole discretion, that the cause of the suspension has been resolved to Haus’ satisfaction. If Customer fails to cure and resolve the cause of the suspension, then notwithstanding any cure periods set forth in this Agreement or other termination rights in this Agreement, Haus may, but is not required to, terminate this Agreement immediately upon written notice to Customer. Any suspension under this Section will not excuse Customer’s payment obligations under this Agreement during the period of such suspension.
14. General
14.1. Performance by Haus. Haus will have the right to use third party service providers, subcontractors and Affiliates to perform any of its obligations and exercise any of its rights under this Agreement. In such event, Haus will remain responsible for performance of such obligations and exercise of rights.
14.2. Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of Fees) to the extent due to unforeseen circumstances or causes beyond its reasonable control and occurring without its fault and negligence, including acts of God, earthquake, fire, health emergency, flood, sanctions, embargoes, trade controls, strikes, lockouts or other labor disturbances, pandemic, civil unrest, failure, unavailability or delay of service providers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, compliance with any law or governmental order, rule, regulation or direction, acts of civil and military authorities, severe weather and other similar events beyond the reasonable control of the affected Party (“Force Majeure”). The affected Party will give the other Party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance. The dates by which any performance of obligations is scheduled to be met will be extended for a period of time equal to the time lost due to any delays so caused. For the avoidance of doubt, Customer will not be released from its payment obligations under this Agreement as a result of a Force Majeure event.
14.3. Audit. During the Term and for one (1) year thereafter, Haus or Haus’ designated agent may, upon reasonable notice to Customer, audit Customer’s books, records and facilities to verify the installation of, access to, and use of any Offerings by Customer and its Authorized Users and Customer’s compliance with the terms and conditions of this Agreement and any Applicable Law. Customer may not take any steps to avoid or defeat the purpose of any such verification measures and will cooperate with Haus so as to facilitate Haus’ audit. If any audit reveals an underpayment by Customer, Haus may invoice Customer for such underpayment in accordance with Haus’ standard policies. Customer will pay such invoice in accordance with the payment terms of this Agreement. Haus will pay for any audits, unless an audit reveals that Customer has underpaid by more than five percent (5%) of the fees in any three (3)-month period, in which case Customer will reimburse Haus for its reasonable audit costs. Haus reserves the right to seek any other remedies available at law or in equity.
14.4. Trade Control Laws. Each Party will comply with all applicable sanctions, export control, and similar laws and regulations of the United States and other countries and regions to the extent not inconsistent with the laws and regulations of the United States.
14.5. Anti-Bribery and Anti-Corruption. Customer represents and warrants that it complies with all applicable laws, rules and regulations relating to antibribery or anticorruption, including those prohibiting the bribery of government officials, and will remain in compliance with all applicable laws, rules and regulations while providing, accessing and using the Offerings; that it will not authorize, offer or make payments directly or indirectly to any government official in violation of applicable laws, rules and regulations; and that no part of any payments received by it (whether as compensation or otherwise) from any third party will be used for any purpose that constitutes a violation of any applicable laws, rules or regulations.
14.6. Government Rights. To the extent Customer or any of Customer’s Authorized Users are government entities, the following terms apply: the Offerings and all associated Documentation are “commercial computer software” and related commercial “computer software documentation” as those terms are defined in the Federal Acquisition Regulation (“FAR”) 2.101 and U.S. Department of Defense (“DoD”) FAR Supplement (“DFARS”) 252.227-7014(a) or similar provisions effective in the applicable jurisdiction, and thus are subject to the policies and requirements of FAR 12.212 or, for DoD, DFARS 227.7202, or similar applicable policies or requirements. All government entities will acquire the Offering and all associated Documentation or other related technical data subject to this Agreement as required in FAR 12.212 (Computer Software) or DFARS 227.7202 and their respective successors, as applicable, except to the limited extent a government end user is prohibited by the laws of its jurisdiction from accepting such terms. If and to the extent any provision of this Agreement is so prohibited, then such provisions will be deemed modified only to the extent reasonably necessary to conform to applicable law, but to give maximum effect to this Agreement as written. This Section 14.6 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
14.7. Assignment. Customer may not, directly or indirectly, assign or transfer this Agreement, or delegate any of its rights or obligations under this Agreement, whether by operation of law, contract or otherwise, without the prior written consent of Haus, and any attempt to do so in breach of the foregoing will be null and void. Haus may assign this Agreement and delegate its obligations under this Agreement at any time and without notice. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
14.8. Notice.
14.8.1. To Haus. Customer will send any notices to Haus via email to [email protected] or by postal mail or delivery service to Haus, Attention: 2261 Market Street #5006, San Francisco CA 94114. Such notices will be effective when received by Haus.
14.8.2. To Customer. Haus will deliver all notices, approvals or other communications required or permitted under this Agreement: (a) via e-mail to the email address provided in Customer’s account; or (b) in any other manner deemed reasonable by Haus that involves specific notification to Customer including sent by postal mail or delivery service to Customer’s address on file or Customer’s Agent of Service of Civil Process.
14.9. Publicity. Neither Party will make any public announcement or comment or issue any press release relating to this Agreement or its subject matter without the prior written approval of the other Party except as required by law or by any legal or regulatory authority. Notwithstanding the foregoing, Haus and its designees may identify Customer as a customer of Haus and use Customer’s name and logo for the purpose of advertising or publicizing the Offerings (but not to brand the Offerings).
14.10. Independent Contractors. Haus and Customer are independent contractors, and neither Party, nor any of their respective Affiliates, is an agent, partner or joint-venturer of the other Party for any purpose or has the authority to bind the other Party.
14.11. Entire Agreement; No Waiver. This Agreement, including all schedules, exhibits and addenda attached to or otherwise referenced in this Agreement, including the Product-Specific Terms, constitutes the entire agreement and understanding of the Parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the Parties in relation to such subject matter. Failure to enforce or exercise any provision of this Agreement is not a waiver of such provision unless such waiver is specified in writing and signed by the party against which the waiver is asserted.
14.12. Modification. No modification or amendment to this Agreement will be valid unless it is in writing and signed by or on behalf of each of the Parties to this Agreement. No oral agreement, course of dealing, or trade usage will be deemed to modify this Agreement. Notwithstanding the foregoing, to the extent such modifications do not materially expand Customer’s obligations, increase Customer’s Fees, or limit Customer’s rights under the Agreement, Haus may make reasonable modifications to this Agreement and will use reasonable efforts to provide Customer with reasonable advance written notice of such modifications.
14.13. Severability; Interpretation. If and to the extent any portion of this Agreement is held to be invalid or unenforceable, then the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect. Any reference in this Agreement to “days” are to calendar days unless otherwise specified. The words “including” and “for example” or “e.g.,” and words of similar import, are not limiting or exclusive and will be deemed followed by “without limitation,” whether or not such language is included. Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision. Any rights and remedies provided for in these Agreement are cumulative and are in addition to, and not in lieu of, any other rights and remedies available under applicable law.
14.14. No Third-Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any Person that is not a party to this Agreement except for Haus’ Affiliates, licensors and service providers as set forth in the Product-Specific Terms and as applicable.
14.15. Counterparts; Execution. This Order Form may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. The Agreement is not effective until each Party has executed at least one counterpart of the Order Form. Signatures to the Order Form may be made and delivered electronically.
14.16. Dispute Resolution. In the event of a claim, dispute or controversy (each, a “Dispute”) arising from or in connection with this Agreement, prior to the commencement of any arbitration proceedings as provided in Section 14.17, the Parties will attempt in good faith to resolve the Dispute by following the escalation path below. A Party who intends to seek arbitration must first send a written notice of the Dispute to the other Party. Such notice must: (a) describe the nature and basis of the Dispute in detail; and (b) set forth the specific relief sought. The Parties will use good faith efforts to resolve the Dispute directly, but if the Parties do not reach an agreement to do so within sixty (60) days after the notice is received, either Party may commence an arbitration proceeding as provided in Section 14.17.
14.17. Arbitration. This Agreement is governed in accordance with the laws of the State of Delaware, U.S.A., without reference to conflict of laws principles. Subject to Section 14.16, any Dispute arising from or in connection with this Agreement will be resolved by binding arbitration in the State of Delaware in accordance with the United States Arbitration Act (9 U.S.C. 1 et seq.), notwithstanding any choice of law provision in this Agreement, under the Commercial Arbitration Rules of the American Arbitration Association.
14.18. Class Action Waiver. Any arbitration will be conducted in the Parties’ individual capacities only and not as a class action or other representative action. The Parties each expressly waive the right to file a class action or seek relief on a class basis either in arbitration or in court. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, WHETHER IN ARBITRATION OR IN ANY COURT. FURTHER, UNLESS BOTH CUSTOMER AND HAUS AGREE OTHERWISE IN WRITING, AN ARBITRATOR OR JUDGE MAY NOT CONSOLIDATE MORE THAN ONE PARTICIPATING PUBLIC AGENCY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. FOR AVOIDANCE OF DOUBT, CUSTOMER AND HAUS WILL RESOLVE ANY DISPUTE ON AN INDIVIDUAL, NON-REPRESENTATIVE, NON-CLASS BASIS IN ARBITRATION, BUT IF FOR ANY REASON SUCH DISPUTE PROCEEDS IN COURT, CUSTOMER AND HAUS WAIVE ANY RIGHT TO HAVE THE DISPUTE PROCEED AS A CLASS ACTION OR IN ANY REPRESENTATIVE CAPACITY WHATSOEVER. IF THE DISPUTE PROCEEDS IN COURT, CUSTOMER AND HAUS WAIVE ANY RIGHT TO A TRIAL BY JURY. If there is a determination that any term in this paragraph is void or unenforceable for any reason as to any claim, then the arbitration provision set forth above will be inapplicable as to that claim, and that claim will instead proceed through litigation in court rather than by arbitration, but only after the conclusion of the arbitration of any claim or dispute subject to the Parties’ arbitration agreement.
