Organization Services Agreement
This ORGANIZATION SERVICES AGREEMENT (“Agreement”) is entered into between Balloon Technologies, Inc., a Delaware corporation (“Company”) and Customer (as defined below). This Agreement includes and incorporates any Order Form that references this Agreement.
By accepting this Agreement, either by clicking a box indicating your acceptance, agreeing to a document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services. To the extent of any conflict or inconsistency between the provisions in this Agreement, the Terms and Conditions, and any other documents referenced in the performance of the Services, the following order of precedent will apply: (1) this Agreement; (2) the Terms and Conditions; and (3) any other documents referenced.
1.1 Provision of Purchased Services. Balloon will (a) make the Services and Content available to Customer pursuant to this Agreement and any applicable Order Forms, (b) provide applicable Balloon standard support for the Purchased Services to Customer at no additional charge, (c) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Balloon shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Balloon’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-Balloon Application, or denial of service attack.
1.2 Protection of Customer Data. Balloon will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Balloon’s personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as Customer expressly permit in writing.
1.3 Balloon Personnel. Balloon will be responsible for the performance of Balloon’ personnel and their compliance with Balloon’s obligations under this Agreement, except as otherwise specified herein.
1.4 Beta Services. From time to time, Balloon may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Balloon’s reservation of rights and Customer’s obligations concerning the Services and use of any related Non-Balloon Applications and Content, shall apply equally to Customer’s use of Beta Services. Balloon may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Balloon will have no liability for any harm or damage arising out of or in connection with a Beta Service.
USE OF SERVICES AND CONTENT
2.1 Subscriptions. Unless otherwise provided in the applicable Order Form (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
2.2 Customer’s Responsibilities. Customer will (a) be responsible for compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Customers Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Balloon promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Balloon Applications with which Customer use Services or Content.
2.3 Usage Restrictions. Customer will not (a) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (b) use a Service or Non-Balloon Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use a Service or Non-Balloon Application to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (e) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (f) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or to access or use any of our intellectual property except as permitted under this Agreement, an Order Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement or Order Forms, by Customer that in Balloon’s judgment threatens the security, integrity or availability of Balloon’s Services, may result in Balloon’s immediate suspension of the Services, however Balloon will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.4 Removal of Content and Non-Balloon Applications. If Balloon is required by a licensor to remove Content or receive information that Content provided to Customer may violate applicable law or third-party rights, Balloon may so notify Customer and in such event, Customer will promptly remove such Content from Customer’s systems. If Balloon receives information that a Non-Balloon Application hosted on a Service by Customer may violate Balloon’s policies, as may be published from time to time or applicable law or third-party rights, Balloon may so notify Customer and in such event, Customer will promptly disable such Non-Balloon Application or modify the Non-Balloon Application to resolve the potential violation. If Customer does not take required action in accordance with the above, Balloon may disable the applicable Content, Service and/or Non-Balloon Application until the potential violation is resolved.
3.1 Balloon or third parties may make available third-party products or services, including, for example, Non-Balloon Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Balloon provider, product or service is solely between Customer and the applicable Non-Balloon provider. Balloon does not warrant or support Non-Balloon Applications or other Non-Balloon products or services, whether or not they are designated by Balloon as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
3.2 Non-Balloon Applications and Customer’s Data. If Customer choose to use a Non-Balloon Application with a Service, Customer grant Balloon permission to allow the Non-Balloon Application and its provider to access Customer’s Data as required for the interoperation of that Non-Balloon Application with the Service. Balloon is not responsible for any disclosure, modification or deletion of Customer’s Data resulting from access by such Non-Balloon Application or its provider.
3.3 Interoperation with Non-Balloon Applications. The Services may contain features designed to interoperate with Non-Balloon Applications. To use such features, Customer may be required to obtain access to such Non-Balloon Applications from their providers and may be required to grant Balloon access to Customer’s account(s) on such Non-Balloon Applications. Balloon cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Balloon Application ceases to make the Non-Balloon Application available for interoperation with the corresponding Service features in a manner acceptable to Balloon.
FEES AND PAYMENT FOR PURCHASED SERVICES
4.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. Customer will provide Balloon with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Balloon. If Customer provides credit card information to Balloon, Customer authorize Balloon to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Balloon will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Balloon and notifying Balloon of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by Balloon by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Balloon may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer have authorized Balloon to charge to Customer’s credit card), Balloon may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend its Services to Customer until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, Balloon will give Customer at least 10 days’ prior notice that Customer’s account is overdue, in accordance with Section 11.1 (Manner of Giving Notice) for billing notices, before suspending services to Customer.
4.5 Payment Disputes. Balloon will not exercise its rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if Customer are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6 Taxes. Balloon fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Balloon has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 4.6, Balloon will invoice Customer and Customer will pay that amount unless Customer provides Balloon with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Balloon is solely responsible for taxes assessable against Balloon based on our income, property and employees.
PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Balloon, our licensors and Content providers reserve all of our/their right, title and interest in and to the Services and Content, including all of our/their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement.
5.3 License to Host Customer’s Data and Applications. Customer grants Balloon a worldwide, limited-term license to host, copy, display and use any Non-Balloon Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer’s Data, each as reasonably necessary for Balloon to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Notwithstanding anything to the contrary, Balloon shall have the right collect, analyze and commercialize Customer Data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Balloon will be free (during and after the term hereof) to (i) use and commercialize such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Balloon offerings, and (ii) disclose and commercialize such Customer Data in de-identified form in connection with its business.
5.4 License to Use Feedback. Customer grant to Balloon a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of our or our Services.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer’s Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Care and Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party, legal counsel and accountants without the other party’s prior written consent. Notwithstanding the foregoing, Balloon may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Balloon Application Provider to the extent necessary to perform Our obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Balloon Warranties. Balloon warrants that during an applicable subscription term (a) this Agreement, the Order Forms will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data, (b) Balloon will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable documentation, and (d) subject to the “Integration with Non-Balloon Applications” section above, Balloon will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM ORDAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.1 Indemnification by Balloon. Balloon will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Balloon in writing of, a Claim Against Customer, provided Customer (a) promptly give Balloon written notice of the Claim Against Customer, (b) give Balloon sole control of the defense and settlement of the Claim Against Customer (except that Balloon may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Balloon all reasonable assistance, at our expense. If Balloon receives information about an infringement or misappropriation claim related to a Service, Balloon may in our discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties under “Balloon Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Balloon, if our Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; (4) a Claim against Customer is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against Customer arises from Content, a Non-Balloon Application or Customer’s use of the Services in violation of this Agreement or applicable Order Forms.
8.2 Indemnification by Customer. Customer will defend Balloon against any claim, demand, suit or proceeding made or brought against Balloon by a third party alleging that (a) any of Customer’s Data or Customer’s use of Customer’s Data with our Services, (b) a Non-Balloon Application provided by Customer, or (c) the combination of a Non-Balloon Application provided by Customer and used with our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement or Order Form (each a “Claim Against Balloon”), and Customer will indemnify Balloon from any damages, attorney fees and costs finally awarded against Balloon as a result of, or for any amounts paid by Balloon under a settlement approved by Customer in writing of, a Claim Against Balloon, provided Balloon (a) promptly give Customer written notice of the Claim Against Balloon, (b) give Customer sole control of the defense and settlement of the Claim Against Balloon (except that Customer may not settle any Claim Against Balloon unless it unconditionally releases Balloon of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.
8.3 Exclusive Remedy. This Article 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Article 8.
LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date Customer first accept it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will be identical to the prior term, unless Balloon provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
10.3 Termination. Balloon may terminate this Agreement for convenience upon at least thirty (30) days prior written notice to the other party, and either party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer for cause in accordance with Section 10.3 (Termination), Balloon will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Balloon for cause in accordance with Section 10.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Balloon for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-Balloon Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
NOTICES, GOVERNING LAW AND JURISDICTION
11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.2 Agreement to Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
11.3 No Agency. For the avoidance of doubt, Balloon is entering into this Agreement as principal and not as agent for any other Balloon company or affiliate. Subject to any permitted Assignment under Section 12.4, the obligations owed by Balloon under this Agreement shall be owed to Customer solely by Balloon and the obligations owed by Customer under this Agreement shall be owed solely to Balloon.
12.1 Export Compliance. The Services, Content, other technology Balloon makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Our Legal Department.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Balloon regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) this Agreement.
12.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement may be terminated by Balloon upon written notice to Customer following a Change of Control (as defined below) which occurs during the term of this Agreement. A “Change of Control” means any sale, transfer, or other disposition of all or substantially all the assets or voting shares of Balloon, or similar transaction or series of related transaction. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a Change of Control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Balloon will refund to Customer any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
“Agreement” means this Organization Services Agreement.
“Beta Services” means Balloon services or functionality that may be made available to Customer to try at Customer’s option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Balloon from publicly available sources or third-party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Balloon Applications.
“Free Services” means Services that Balloon makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Balloon Application” means a Web-based, mobile, offline or other software process or functionality that is provided by Customer or a third-party and interoperates with the Service.
“Order Form” means an ordering document or link, whether in hard or electronic form, specifying the Services to be provided hereunder that is entered into between Customer and Balloon, including any addenda and supplements thereto. Any Order Form entered into by Customer shall be make a part of this Agreement whether or not any specific reference to this Agreement is contained in any relevant Order Form.
“Purchased Services” means Services that Customer purchases under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order Form and made available online or on-premises by Balloon, including associated Balloon offline or mobile components. “Services” exclude Content and Non-Balloon Applications. Specifically, Services means: The Balloon platform is made up of two main components: Fast Data Retrieval and Machine Deep Learning. Through Fast Data Retrieval, Balloon can connect to any private or public data source identified by Customer. Fast Data Retrieval has capabilities for cleaning, formatting and processing data. Customer can connect its data in streaming/real time so that Balloon has no need to copy any data to operate (any performance issues will be dependent on the Customer’s infrastructure); or, let Balloon securely copy the necessary data if Customer’s infrastructure is not optimized for such operations. The Machine Deep Learning component lets Balloon process Customer’s data and deliver key performance indicator responses. The Machine Deep Learning component may correlate information from different data points provided by Customer. On a long-term basis, the Machine Deep Learning component will attempt to create Customer’s business knowledge graph based on the data sources provided. The knowledge graph will store all necessary meta data to provide Customer with the best possible business intelligence. Balloon may use other cloud services / technologies in addition to the main components to provide Customer with better service and experience. These services will be complimentary to the main proprietary components and will never have direct access to Customer’s connected data sources.