These Core365 Terms of Service (together with all the exhibits and other attachments, these “Terms”) are by and between Core365 ERP LLC, a Utah limited liability company (“Core365”), and the business entity that receives Services from Core365 under an Order Form (“Customer”). These Terms constitute a binding agreement between Core365 and Customer (together, the “Parties” and, individually, each a “Party”).
THESE TERMS GOVERN CUSTOMER’S ACCESS TO, USE OF, AND RECEIPT OF THE SERVICES. BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OF THESE TERMS OR EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS. IF AN INDIVIDUAL ACCEPTS THESE TERMS ON BEHALF OF CUSTOMER, THAT INDIVIDUAL REPRESENTS THAT THE INDIVIDUAL HAS AUTHORITY TO BIND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MUST NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICES.
THE RIGHTS GRANTED UNDER THESE TERMS ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION. ANY ADDITIONAL OR DIFFERENT TERMS IN A PURCHASE ORDER, VENDOR PORTAL, PROCUREMENT FORM, OR OTHER DOCUMENT DELIVERED BY OR FOR CUSTOMER ARE MATERIAL ALTERATIONS, ARE REJECTED, AND DO NOT MODIFY THE AGREEMENT UNLESS CORE365 EXPRESSLY AGREES IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE.
1. DEFINITIONS
For purposes of these Terms, the following capitalized terms shall have the meanings stated below. Other capitalized terms are defined in the context in which they are used. Capitalized terms not defined in these Terms have the meanings stated in the applicable Agreement.
(a) “Account” means a password-protected account assigned to an Authorized User for access to the SaaS Offerings.
(b) “Aggregated Data” means information derived from Customer Data or use of the SaaS Offerings that has been aggregated, deidentified, or otherwise anonymized so that it does not identify Customer, an Authorized User, or an individual, and that satisfies applicable legal requirements for aggregation or deidentification.
(c) “Agreement” means, with respect to the Services described in an Order Form, these Terms, the applicable Order Form, the DPA (if applicable), and applicable Supplemental Terms.
(d) “Authorized User” means an individual Customer authorizes to access or use the SaaS Offerings on Customer’s behalf.
(e) “Confidential Information” means any information prepared for or delivered to a Party (the “Receiving Party”) by the other Party or its representative (the “Disclosing Party”) (including information or data received by the Disclosing Party from a third party and to whom the Disclosing Party has confidentiality obligations) that is known to the Receiving Party, or should be known to a reasonable person given the contents and circumstances of the disclosure, as being treated as confidential or proprietary by the Disclosing Party.
(f) “Customer Data” means data, content, records, communications, files, and other information collected through or otherwise generated by Customer’s or Authorized Users’ access to or use of the SaaS Offerings. Customer Data does not include Aggregated Data, Feedback, Operational Data, or Core365 Intellectual Property.
(g) “Documentation” means Core365 user manuals, operating instructions, help materials, and other documentation relating to access to, use of, or operation of the Services that Core365 generally makes available.
(h) “DPA” means a data processing agreement applicable to Core365’s processing of personal information on Customer’s behalf through or in connection with Core365’s performance of the Services.
(i) “Feedback” means advice, recommendations, proposals, suggestions, comments, and other feedback Customer or an Authorized User provides to Core365 concerning the Services or other products or services of Core365 or its affiliates.
(j) “Fees” means amounts payable for the Services under an Order Form.
(k) “Intellectual Property” means intellectual property and proprietary rights recognized under applicable law, whether registered or unregistered, including copyrights, patent rights (including, without limitation, applications for patent prosecution), trademarks, trade names, service marks, trade dress, trade secrets, know-how, techniques, business processes, configurations, and methods.
(l) “Mobile Application” means a Core365 mobile application provided as part of the SaaS Offerings.
(m) “Operational Data” means technical, diagnostic, security, telemetry, performance, usage, and operational information generated through operation, administration, support, security, or use of the SaaS Offerings. Operational Data does not include Customer Data in identifiable form, except to the extent temporarily accessed or incorporated as necessary to provide, secure, support, troubleshoot, or enforce the SaaS Offerings and Agreement.
(n) “Order Form” means an ordering document accepted by Customer and Core365 that specifies Services, quantities, Fees, Subscription Term, or other Customer-specific commercial terms.
(o) “SaaS Offerings” means the Core365 software-as-a-service applications, Mobile Applications, and applicable Documentation specified in an Order Form.
(p) “Services” means the SaaS Offerings and any related services Core365 provides under an Order Form.
(q) “Subscription Term” means the period stated in an Order Form during which Customer is authorized to access and use the applicable SaaS Offerings.
(r) “Supplemental Terms” means additional written terms expressly identified as applying to particular Services, functionality, or subject matter.
(s) “Third Party Services” means third party products, services, platforms, applications, websites, networks, lenders, financial institutions, communications services, or other offerings accessed, connected, enabled, or used in connection with the Services.
2. GENERAL TERMS FOR SERVICES
(a) Order Forms. Customer may request Services under one or more Order Forms. An Order Form becomes effective when accepted by both Parties through signature, electronic acceptance, or another method used by the Parties. Core365 may reject an Order Form before acceptance. Each accepted Order Form is subject to these Terms and applicable Supplemental Terms.
(b) Documentation License. Subject to Customer’s compliance with the Agreement, Core365 grants Customer a nonexclusive, nonsublicensable, nontransferable license during the applicable Subscription Term to use the Documentation solely for Customer’s internal purposes in connection with its authorized use of the applicable Services.
(c) Authorized Users. Customer is responsible for Authorized Users’ actions under or in connection with the Agreement. Customer will ensure that Authorized Users comply with the Agreement and applicable law. An Authorized User’s breach of the Agreement in connection with Customer’s use of the Services constitutes Customer’s breach of the Agreement.
(d) Feedback. By submitting Feedback, Customer acknowledges and agrees that: (1) Feedback will not contain Customer Confidential Information; (2) Core365 has no obligation of confidentiality concerning Feedback; (3) Core365 may disclose, use, modify, incorporate, and otherwise exploit Feedback for any purpose without restriction; (4) Core365 may have similar ideas already under consideration or development; and (5) Customer is not entitled to compensation or reimbursement in connection with Feedback. To the extent Customer retains any rights in any Feedback, Customer grants Core365 a perpetual, irrevocable, worldwide, royalty-free, transferable, sublicensable license to exercise those rights for any purpose.
(e) Subcontractors. Core365 may subcontract performance of its duties or obligations under the Agreement. Core365 remains responsible for each subcontractor’s performance to the same extent as if performed by Core365.
3. SAAS OFFERINGS
(a) General. Subject to the applicable Agreement, Core365 will provide the SaaS Offerings to Customer during the applicable Subscription Term.
(b) Authorization for Access and Use. Subject to Customer’s compliance with the Agreement and payment of Fees, Core365 grants Customer a limited, nonexclusive, nontransferable, nonsublicensable, nonassignable, revocable right during the applicable Subscription Term to permit Authorized Users to access and use the applicable SaaS Offerings in accordance with the Agreement and Documentation solely for Customer's internal business purposes and within applicable user, module, location, usage, and other Order Form limits. Customer's rights terminate upon expiration or earlier termination of the applicable Agreement.
(c) EULA. Each Authorized User’s access to and use of the SaaS Offerings is subject to the Core365 End User License Agreement (“EULA”) presented or made available to the Authorized User. Customer will ensure that Authorized Users accept and comply with the EULA as a condition of accessing or using the SaaS Offerings.
(d) Accounts. Each Account is personal to the Authorized User assigned to it. Customer will ensure that Account information is accurate and current, Account credentials are protected and not shared, compromised credentials are changed or disabled properly, and Core365 is notified promptly of known or suspected unauthorized access. Customer authorizes Core365 to access Accounts and Customer Data as reasonably necessary to administer, provide, operate, secure, configure, troubleshoot, and support the SaaS Offerings, subject to the Agreement.
(e) Restrictions. Customer will not, and will not permit any other person to:
(1) access or use the SaaS Offerings other than as permitted by the Agreement and Documentation;
(2) copy the SaaS Offerings or Documentation except as expressly permitted;
(3) use the SaaS Offerings in a service-bureau or time-sharing environment or to provide services to third parties, except as expressly permitted in an Order Form or Supplemental Terms;
(4) modify, disassemble, reverse engineer, decompile, decode, or attempt to reconstruct or discover source code, underlying ideas, algorithms, file formats, or programming interfaces, except where prohibited by law;
(5) sell, assign, transfer, sublicense, lease, pledge, rent, distribute, or otherwise share Customer's rights under the Agreement;
(6) create derivative works based on the SaaS Offerings or Documentation except as expressly permitted;
(7) modify, obscure, or remove product identification or proprietary notices;
(8) introduce malicious code or interfere with, disrupt, damage, disable, overburden, or impair the SaaS Offerings or related systems;
(9) circumvent authentication, access, usage, security, or technical controls;
(10) use automated means to scrape, crawl, extract, or data mine the SaaS Offerings except through interfaces Core365 expressly authorizes;
(11) use the SaaS Offerings or nonpublic information about them to build or improve a competing offering, or publish benchmarking or comparative results, without Core365's prior written consent; or
(12) access or use the SaaS Offerings in violation of applicable law or third-party rights.
(f) Customer Systems and Connectivity. Except as stated in an Order Form, Customer is responsible for obtaining and maintaining compatible devices, hardware, software, operating systems, networks, internet or cellular connectivity, and other equipment and services needed to access or use the SaaS Offerings; all related charges; security of Customer-controlled systems; and all use of those systems. Core365 is not responsible for compatibility or performance issues caused by Customer-controlled systems, connections, or Third Party Services.
(g) Suspension. Core365 may immediately suspend all or part of Customer's or an Authorized User's access to the SaaS Offerings if: (1) Core365 reasonably determines that access or use could adversely affect the SaaS Offerings, another customer, or Core365 systems; (2) Core365 suspects unauthorized access, fraud, or misuse; (3) suspension is reasonably necessary to comply with law or legal process; (4) Customer or an Authorized User breaches Section 3(d) or 3(e); or (5) Customer fails to pay amounts when due under Section 6. Core365 will reinstate suspended access when Core365 determines the circumstances giving rise to suspension have been resolved. Unless prohibited by law and where reasonably possible, Core365 will give notice of suspension and its basis.
(h) Changes to SaaS Offerings. Core365 may, in its discretion and without obligation, change the SaaS Offerings as Core365 considers necessary or useful to maintain or enhance quality, delivery, marketability, cost efficiency, security, or performance, or to comply with law. Core365 is not obligated to provide or maintain any feature, configuration, integration, or functionality except as expressly stated in an Order Form or Supplemental Terms. Roadmaps, demonstrations, marketing descriptions, and statements concerning future functionality are informational and are not commitments to deliver functionality.
(i) Conditional Functionality. Optional, configurable, service-specific, preview, or integration-dependent functionality is included only when purchased or made available under the applicable Order Form, Supplemental Terms, Documentation, and configuration. If applicable functionality is made available: (1) Customer is responsible for inputs, instructions, and appropriate human review of AI-assisted or automated results; (2) Customer is responsible for legally required notices, permissions, consent records, and opt-outs for Customer-controlled communications and recordings; (3) Customer is responsible for Customer documents, signer identity and authority, and transaction-specific notices and consents; and (4) independent lenders, payment processors, financial institutions, and Third Party Services remain responsible for their products, terms, disclosures, decisions, and services.
(j) Third Party Services. The SaaS Offerings may permit Customer to access, connect to, or use Third Party Services. Customer is responsible for applicable third party accounts, credentials, permissions, licenses, and terms. When Customer enables a Third Party Service, Customer authorizes Core365 to exchange Customer Data with that Third Party Service as reasonably necessary to operate the requested integration. Core365 is not responsible for a Third Party Service's acts, omissions, availability, functionality, accuracy, security, privacy practices, data practices, changes, or discontinuation. Core365 may modify, suspend, or discontinue an integration because of third party changes, security, law, or operational requirements.
(k) Open Source Software. The SaaS Offerings may include software governed by open source licenses. Applicable open source licenses govern that software to the extent required by their terms.
(l) Export Restrictions. Customer will not access, use, export, or re-export the SaaS Offerings or related technology in violation of applicable export control or economic sanctions laws. Customer represents that it is not located in, organized under the laws of, or ordinarily resident in a country or region subject to a comprehensive U.S. Government embargo and is not identified on a U.S. Government list of prohibited or restricted parties, in each case to the extent applicable to Customer's access to or use of the SaaS Offerings.
(m) Commercial Software. The SaaS Offerings and Documentation are commercial computer software and commercial computer software documentation. U.S. Government use is subject to the rights customarily provided to the public under the Agreement to the extent permitted by procurement law.
4. CUSTOMER DATA
(a) Consents and Notices. Customer is responsible for obtaining all consents and providing all legally required notices necessary to enable Customer’s and Authorized Users’ access to and use of the SaaS Offerings and Core365’s access to, storage of, and processing of Customer Data as contemplated by the Agreement. Customer is responsible for requesting information from Core365 reasonably necessary to describe relevant data practices. Core365 has no responsibility to provide Customer-facing notices or obtain consents on Customer’s behalf.
(b) Permitted Use of Customer Data. Core365 may: (1) access Customer Data to administer, provide, operate, configure, secure, maintain, support, and troubleshoot the Services; (2) reproduce, encode, transmit, display, process, and otherwise use Customer Data to the extent necessary for those purposes, to follow Customer's documented instructions, enforce the Agreement, or comply with law; and (3) use Customer Data to create Aggregated Data and use, share, and commercialize Aggregated Data for any lawful purpose, including improving the Services and developing products and services. Core365 may permit service providers and subcontractors to exercise those rights only as necessary and subject to applicable contractual obligations.
(c) Prohibited Use of Customer Data. Except as otherwise provided in the Agreement or agreed in writing, Core365 will not sell, rent, lease, pledge, assign, license, gift, distribute, or otherwise transfer or permit access to Customer Data to a third party, except where necessary to administer, provide, operate, configure, secure, or support the Services. Core365 will not derive revenue from or otherwise monetize Customer Data except for Fees under the Agreement. Core365 will not use Customer Data to train generalized artificial intelligence or machine learning models without Customer's explicit written consent; this restriction does not prohibit processing necessary to provide Customer-requested functionality or permitted use of Aggregated Data or Operational Data.
(d) Customer Data Restrictions and Warranty. Customer will not provide Customer Data except as necessary for authorized use of the Services. Customer represents and warrants that it has all rights, permissions, notices, and consents necessary to provide Customer Data and authorize its processing under the Agreement; Customer Data and Customer’s use of it will not violate law or third party rights; and Customer will not direct Core365 to process Customer Data unlawfully.
(e) Privacy and DPA. To the extent Core365 processes personal data subject to applicable U.S. privacy laws for or on behalf of Customer in the course of providing of the Services, the Parties shall enter into a DPA to govern the processing of such personal data prior to engaging in any such processing.
(f) Security. Core365 will maintain reasonable administrative, technical, and organizational safeguards designed to protect Customer Data against reasonably foreseeable unauthorized access, acquisition, destruction, alteration, or disclosure. No system is completely secure, and Core365 does not warrant that a security incident or loss can never occur.
(g) Removal. Upon expiration or termination of the applicable Agreement, Customer may request export of its Customer Data in a standard format. Core365 will make such data available for download for thirty (30) days following termination. After this period, Core365 may securely erase or destroy Customer Data in its possession or reasonable control, except as otherwise required by law, legal process, or another written agreement. Customer Data retained by Core365 remains subject to applicable obligations under the Agreement for so long as retained. Removal and destruction obligations do not apply to Aggregated Data, and expiration or termination does not affect Core365’s rights in Aggregated Data.
5. OWNERSHIP
(a) Core365 Intellectual Property. As between the Parties, Core365 owns all right, title, and interest in and to: (1) the SaaS Offerings, including the software, technology, Documentation, interfaces, designs, methods, templates, models, Core365 content, marks, improvements, modifications, enhancements, additions, derivatives, analytics, and all Intellectual Property in the foregoing; (2) Aggregated Data; (3) Operational Data; and (4) Feedback (collectively, "Core365 Intellectual Property"). Customer does not acquire any rights, express or implied, in Core365 Intellectual Property other than the limited rights expressly granted under the Agreement. Customer may not use Core365 names, logos, product names, or marks without Core365's prior written consent.
(b) Customer Data. As between the Parties, Customer owns all right, title, and interest in and to Customer Data, irrespective of whether Customer Data is stored through the SaaS Offerings or in a database created using the SaaS Offerings. Customer's ownership does not include Core365 Intellectual Property incorporated in or applied to Customer Data through administration, performance, operation, configuration, or use of the SaaS Offerings. Core365 does not acquire rights in Customer Data other than those specified in the Agreement.
(c) Third Party Intellectual Property. The SaaS Offerings may incorporate or provide access to Intellectual Property owned by third parties. Customer's access to or use of third party Intellectual Property may require Customer to accept additional third party terms before using applicable features or functionality.
6. FEES AND PAYMENTS
(a) Fees. Customer will pay Fees stated in the applicable Order Form or authorized purchasing flow, in U.S. dollars unless stated otherwise. Customer will pay invoices as stated in the applicable Order Form. If Customer provides a payment method for recurring charges, Customer authorizes Core365 or its payment provider to charge initial and recurring Fees, usage or overage charges authorized under the Agreement, and applicable taxes.
(b) Taxes. Fees are exclusive of sales, use, excise, value-added, and similar taxes and governmental assessments. Customer will pay applicable taxes other than taxes imposed on Core365's net income. If withholding is required, Customer will withhold and remit the required amount and provide reasonable evidence of payment upon request.
(c) Recurring Charges; Renewal; Refunds; Pricing. Unless the applicable Order Form states otherwise: (1) monthly or annual subscriptions automatically renew for successive terms of the same length unless Customer gives notice of nonrenewal before the renewal date through an available account setting or by contacting Core365; (2) monthly Fees are nonrefundable and cancellation is effective at the end of the current billing period; (3) annual Fees are nonrefundable after fourteen (14) days from the annual term start, and Customer may request a full refund during that initial period; and (4) Core365 may change pricing on notice, effective no earlier than the next applicable renewal or billing period. Nonrenewal does not terminate the current Subscription Term early or create a refund.
(d) Suspension. Without limiting other rights or remedies, Core365 may suspend Services or terminate future Services if payments are not received when due. Suspension does not relieve Customer of payment obligations.
7. CONFIDENTIALITY
(a) Obligations. The Receiving Party shall keep in strict confidence and trust all Confidential Information. The Receiving Party shall not: (1) use Confidential Information for any purpose other than its performance under or in connection with the Agreement; or (2) without the prior written consent of the Disclosing Party, disclose Confidential Information to any third party (other than to the Receiving Party’s employees, agents, or representatives on a need-to-know basis who are bound by obligations of non-disclosure and limited use at least as stringent as those contained herein). The Receiving Party shall use the same care and discretion to avoid disclosure of Confidential Information as it uses with its own confidential or proprietary information, and in no event with less than reasonable care. Upon the Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all Confidential Information, together with any copies thereof, or, if requested by the Disclosing Party, destroy the same.
(b) Exceptions. As used in these Terms, the term Confidential Information does not include information that: (1) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (2) was possessed by the Receiving Party prior to being furnished by the Disclosing Party without any obligation of confidentiality with respect to such information; (3) is independently developed by the Receiving Party without breach of this Agreement; or (4) becomes available to the Receiving Party from a source other than the Disclosing Party that is permitted to disclose such information without any obligation of confidentiality with respect to such information.
(c) Required Disclosures. Notwithstanding Section 7(a), the Receiving Party may disclose Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law requires the disclosure of such information, provided that: (1) if not prohibited under applicable law, the Receiving Party, prior to disclosing such information, gives reasonable prior written notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (2) in all cases, the Receiving Party discloses only that information that is legally required to be disclosed. For clarity, any Confidential Information the Receiving Party discloses pursuant to this Section 7(c) shall remain subject to the confidentiality requirements under the Agreement for all other purposes.
(d) Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may be irreparably harmed if Confidential Information were to be disclosed to third parties, or if any use were to be made of Confidential Information other than as permitted under the Agreement and further agrees that the Disclosing Party shall have the right to seek injunctive relief upon any violation or threatened violation of the terms of this Section 7, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.
(e) Survival of Confidentiality Obligations. Confidentiality obligations under this Section continue during the term of the applicable Agreement and for five (5) years after its expiration or termination. Notwithstanding the foregoing, obligations concerning a trade secret continue for so long as the Disclosing Party protects the information as a trade secret under applicable law.
8. TERM AND TERMINATION
(a) Term. These Terms become effective when Customer accepts them and remain effective while an Order Form is in effect, unless earlier terminated under the Agreement. Each Order Form remains effective for its stated Subscription Term.
(b) Termination. In addition to termination rights stated elsewhere in the Agreement:
(1) Core365 may terminate an affected Order Form on written notice if Customer fails to pay an amount when due and the failure continues for thirty (30) days after notice, or if Customer breaches Section 3(d) or 3(e);
(2) either Party may terminate an affected Order Form on written notice if the other Party materially breaches the Agreement and the breach is incapable of cure or remains uncured for thirty (30) days after written notice;
(3) either Party may terminate the Agreement immediately on written notice if the other Party becomes insolvent, generally fails to pay debts as due, becomes subject to bankruptcy or insolvency proceedings not dismissed within sixty (60) days, makes a general assignment for creditors, or has a receiver or similar agent appointed over a material part of its property or business; and
(4) Core365 may terminate an affected Service or feature if it is generally discontinued or if Core365's right to provide a feature dependent on a third party expires or terminates. Any notice, credit, or refund associated with such discontinuation will be as stated in the applicable Order Form or Supplemental Terms.
(c) Effect of Termination. Upon expiration or termination of an Agreement, Customer and Authorized Users will immediately discontinue access to and use of the affected Services. Termination does not affect Customer's obligation to pay Fees due before termination, does not create a refund except where expressly stated in the Agreement, and does not relieve either Party of liabilities or obligations arising before termination.
9. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
(a) Mutual Representations. Each Party represents that it has full right, power, and authority to enter into and perform the Agreement and that the Agreement constitutes a valid and binding obligation of that Party, enforceable in accordance with its terms, subject to applicable bankruptcy and equitable principles.
(b) Customer Representations and Covenants. Customer represents, warrants, and covenants that Customer's and Authorized Users' access to and use of the Services will comply with the Agreement and applicable law and will not infringe or misappropriate third party Intellectual Property or other rights. Customer is responsible for configuration, workflows, inputs, instructions, and review of information and results generated through the Services.
(c) Disclaimer of Warranties.
(1) OTHER THAN AS EXPRESSLY STATED IN THE AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITH ALL FAULTS, WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE CREATES A WARRANTY OR INCREASES THE SCOPE OF A WARRANTY EXPRESSLY GRANTED IN THE AGREEMENT.
(2) CORE365 DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR RESULTS FROM THEIR USE WILL MEET CUSTOMER'S, AN AUTHORIZED USER'S, OR A THIRD PARTY'S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE AN INTENDED RESULT; BE COMPATIBLE WITH ANY SOFTWARE, SYSTEM, OR THIRD PARTY SERVICE; BE SECURE, ACCURATE, COMPLETE, CURRENT, OR FREE OF HARMFUL CODE OR ERROR; OR THAT DEFECTS WILL BE CORRECTED. CORE365 DOES NOT WARRANT AGAINST DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, SETTINGS, OR CUSTOMER DATA. THE SERVICES AND RESULTS DO NOT CONSTITUTE LEGAL, TAX, ACCOUNTING, FINANCIAL, EMPLOYMENT, OR OTHER PROFESSIONAL ADVICE.
(3) SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES, SO SOME DISCLAIMERS MAY NOT APPLY TO CUSTOMER.
10. INDEMNIFICATION
(a) Indemnification by Core365. Core365 will indemnify, defend, and hold Customer harmless from losses, judgments, settlements, damages, liabilities, and reasonable attorneys' fees and other costs arising from a third party claim that Customer's authorized use of the SaaS Offerings as provided by Core365 infringes or misappropriates that third party's Intellectual Property rights (an "Infringement Claim"). Core365 has no obligation for a claim based on: (1) unauthorized or out-of-scope use; (2) modification not made by Core365; (3) combination with items not provided or required by Core365 where the claim would not arise without the combination; (4) continued use after notice or after Core365 makes a non-infringing replacement or modification available; (5) Customer Data or Customer specifications or instructions; or (6) Third Party Services or other third party Intellectual Property. If an Infringement Claim is made or appears possible, Core365 may obtain continued use rights, modify or replace the affected SaaS Offering, or, if Core365 determines neither alternative is reasonably available, terminate the affected SaaS Offering and refund prepaid Fees allocable after termination. This Section states Customer's sole remedy and Core365's sole liability for an Infringement Claim. Core365's liability under this Section will not exceed Fees paid under the affected Order Form during the twelve (12) months immediately preceding the event giving rise to the claim.
(b) Indemnification by Customer. Customer will indemnify, hold harmless, and defend Core365, its affiliates, and their officers, directors, employees, agents, and attorneys from losses, judgments, settlements, damages, liabilities, penalties, fines, and reasonable attorneys' fees and other costs arising out of: (1) Customer's negligence or more culpable conduct; (2) Customer's breach of a representation, warranty, or covenant; (3) unauthorized access to or use of the Services; (4) modifications not made by Core365; (5) combinations with software, hardware, equipment, or technology not provided or authorized by Core365 where the claim would not arise without the combination; (6) Customer Data; (7) Customer-controlled communications, calls, messages, email, campaigns, recordings, documents, electronic-signature workflows, finance or lender workflows, recipients, instructions, configurations, products, services, or operations; or (8) a claim that Customer Data or Customer's access to or use of the Services infringes, misappropriates, or wrongfully uses a third party's Intellectual Property, privacy, publicity, contractual, or other rights, or is libelous or defamatory.
(c) Procedure. The indemnified Party will provide prompt written notice, sole control and authority over defense and settlement, and available information and reasonable assistance at the indemnifying Party's expense. Failure to provide prompt notice, control, information, or assistance relieves the indemnifying Party only to the extent materially prejudiced. A settlement requiring an action or admission by the indemnified Party or failing to fully release the indemnified Party requires its prior written consent. The indemnified Party may participate with counsel at its own expense.
11. LIMITATION OF LIABILITY
(a) General. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THE AGREEMENT FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY, REGARDLESS OF THEORY OF LIABILITY, OR FOR ERROR OR INTERRUPTION OF USE, INCREASED COSTS, DIMINUTION IN VALUE, LOST BUSINESS, LOST PRODUCTION, LOST REVENUE, LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, OR COST OF REPLACEMENT GOODS OR SERVICES. SUBJECT TO OTHER LIMITATIONS IN THE AGREEMENT, CORE365'S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS ARISING OUT OF, RESULTING FROM, OR CONNECTED WITH CORE365'S PERFORMANCE UNDER OR BREACH OF THE AGREEMENT WILL NOT EXCEED THE FEES CUSTOMER ACTUALLY PAID UNDER THE AFFECTED ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT GIVING RISE TO LIABILITY.
(b) Exclusions. THE FOREGOING LIMITATIONS DO NOT APPLY TO: (1) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (2) CUSTOMER'S INDEMNIFICATION OBLIGATIONS; (3) DAMAGES RESULTING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (4) LIABILITY THAT CANNOT LAWFULLY BE LIMITED. CUSTOMER'S PAYMENT OBLIGATIONS ARE INDEPENDENT CONTRACTUAL OBLIGATIONS AND ARE NOT DAMAGES SUBJECT TO THE CORE365 LIABILITY CAP.
(c) Customer Actions and Inactions. FOR CLARITY, CORE365 IS NOT RESPONSIBLE OR LIABLE UNDER THE AGREEMENT FOR COSTS, EXPENSES, DAMAGES, OR LIABILITIES CAUSED BY OR ARISING FROM: (1) A VIOLATION OF LAW OR THIRD PARTY CLAIM ASSOCIATED WITH CUSTOMER DATA; (2) CUSTOMER'S OR AN AUTHORIZED USER'S ACTION OR INACTION, UNLESS AT CORE365'S SPECIFIC DIRECTION; OR (3) CUSTOMER'S FAILURE TO FULFILL ITS RESPONSIBILITIES UNDER THE AGREEMENT.
12. MISCELLANEOUS
(a) Relationship of the Parties. The Parties are independent contractors. The Agreement does not create a partnership, joint venture, fiduciary, employment, or agency relationship. Neither Party may bind the other without prior written authorization.
(b) Governing Law and Disputes.
(1) The Agreement is governed by Utah law without regard to conflicts-of-law principles. Any suit, action, or proceeding arising out of or relating to the Agreement must be brought exclusively in the state courts located in Utah County, Utah or the federal court having jurisdiction over Utah County. Each Party irrevocably submits to personal jurisdiction and venue in those courts and waives objections based on inconvenient forum.
(2) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT TO A JURY TRIAL IN A LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY IT.
(3) Either Party may seek injunctive or equitable relief to protect Confidential Information or Intellectual Property or to prevent unauthorized access or misuse. Except as expressly stated otherwise, rights and remedies are cumulative.
(c) No Third Party Beneficiaries. The rights, remedies, obligations, and liabilities arising under or in connection with the Agreement are solely intended to apply to the Parties and their permitted successors and assigns. Nothing in the Agreement, express or implied, is intended to confer any right or remedy on any other person, relieve or discharge an obligation or liability of any third party to a Party, or give any third party any right of subrogation or action over against a Party, except that persons expressly entitled to indemnification under Section 10 may enforce those rights.
(d) Use of Customer Name and Marks. Customer authorizes Core365 to identify Customer as a customer and to include Customer's name and logo in customer lists and on Core365 commercial websites. Other promotional use requires Customer's prior written consent.
(e) Amendment and Modification. Core365 may propose amendments to these Terms by providing notice in a manner permitted under the Agreement. A proposed amendment is deemed accepted and becomes part of these Terms thirty (30) days after notice unless Customer informs Core365 that Customer does not accept it. If Customer rejects a proposed amendment, the existing Terms remain effective, but Core365 may terminate these Terms on written notice. No other modification is valid unless agreed in a writing or electronic record accepted by authorized representatives. A posted or proposed amendment does not override an express conflicting term in a signed Order Form unless that Order Form expressly permits the change.
(f) Waiver. A waiver is effective only if set forth in writing and signed by the waiving Party. A waiver applies only to the specific circumstance stated. Failure or delay in exercising a right, remedy, power, or privilege is not a waiver, and a single or partial exercise does not preclude another or further exercise.
(g) Severability. If a term is invalid, illegal, or unenforceable in a jurisdiction, that invalidity, illegality, or unenforceability does not affect another term or invalidate or render the term unenforceable in another jurisdiction.
(h) Assignment. Customer may not assign its rights or delegate its obligations under the Agreement, voluntarily, involuntarily, by operation of law, or otherwise, without Core365's prior written consent. A prohibited assignment or delegation is void. Core365 may assign the Agreement to an affiliate or in connection with a merger, reorganization, change of control, financing, or sale of all or substantially all of the relevant business or assets. No assignment or delegation relieves obligations arising before it. The Agreement binds and benefits the Parties and their permitted successors and assigns.
(i) Force Majeure. Core365 is not liable to Customer and is not in breach for failure or delay caused by circumstances beyond Core365's reasonable control, including acts of God, natural disasters, fire, epidemic or pandemic, war, terrorism, civil unrest, labor disturbance, interruption of utilities, telecommunications or internet services, denial-of-service or other attack, third-party service failure, passage of law, or governmental action. This Section does not excuse Customer's payment obligations or compliance with use restrictions.
(j) Survival. Provisions intended by their nature to survive expiration or termination remain effective. Without limiting the foregoing, provisions concerning Customer Data, ownership, Feedback, confidentiality, payment obligations, indemnification, limitation of liability, disputes, and miscellaneous terms survive.
(k) Conflicts. If there is a conflict among the documents comprising the Agreement, the DPA (if applicable) controls the processing of personal data within its stated scope; Supplemental Terms control their stated functionality or subject matter; and an Order Form controls Customer-specific Services, quantities, Fees, billing, and Subscription Term. These Terms otherwise control. Priority applies only to an actual conflict within the subject matter assigned to the controlling document. A signed Order Form or other bilateral document may modify these Terms only if it expressly identifies the modification.
(l) Notices. Notices permitted or required under the Agreement must be in writing and may be sent by email to the address designated by the receiving Party. Notices to Core365 must be sent to legal@core365.io and to Core365 ERP LLC, 1064 S North County Blvd, Suite #260, Pleasant Grove, Utah 84062, United States. Notices to Customer may be sent to the legal, billing, or administrative contact in the applicable Order Form or Customer account. Notice is effective when sent without delivery failure, except where applicable law requires another method or effective date.
(m) Electronic Communications. Each Party consents to receive agreements, notices, disclosures, and other communications electronically where permitted by law. Electronic records and signatures satisfy applicable writing and signature requirements to the extent permitted by law.
(n) Entire Agreement. The Agreement constitutes the entire understanding between the Parties concerning its subject matter and supersedes prior or contemporaneous oral or written communications and agreements concerning that subject matter. Usage of trade, course of dealing, or course of performance will not modify or supplement the express terms of the Agreement. Terms included in a Customer-issued document that conflict with the Agreement are void despite Core365's failure to object.
(o) Contact. General inquiries: hello@core365.io. Support: support@core365.io. Legal: legal@core365.io. Privacy: privacy@core365.io. Mailing address: Core365 ERP LLC, 1064 S North County Blvd, Suite #260, Pleasant Grove, Utah 84062, United States.