MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS BETWEEN YOU AND CHILI PIPER, INC., A DELAWARE CORPORATION AND THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY STARTING USING OUR SERVICES (OR BY CLICKING TO ACCEPT, EXECUTING AN ORDER FORM THAT REFERENCE, OR OTHERWISE AGREEING TO THIS MASTER SUBSCRIPTION AGREEMENT WHEN SUCH OPTION IS MADE AVAILABLE TO YOU), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH ACTION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 23rd, 2021.
“Documentation” means the Service Description, user guides, blog posts, and other technical and operations documents and specifications for the Services located on the domain chilipiper.com, as updated from time to time. You acknowledge that You have had the opportunity to review the Documentation.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Services” means the products and services made available by Us online via the customer login link at https://www.chilipiper.com and/ or other web pages designated by Us, including associated offline components, as described in the Documentation. “Services” exclude Third-Party Applications.
“Subscription” means a subscription to the Services based on the Services offerings and prices listed at https://www.chilipiper.com/pricing/
“Order Form” means the invoice or online form used for placing orders, including the type and number of Subscriptions.
“Subscription Term” means the term of a Subscription as set forth in the applicable Order Form.
“Service Description” means the description of the features, functions, pricing, limitations, and restrictions (including acceptable use policies and the service terms for specific Services) associated with a Service and located at https://www.chilipiper.com, as updated from time to time.
“Third-Party Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means Chili Piper, Inc.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to, or made available by You to and collected by Us as part of, the Purchased Services.
“Your Systems” means the systems, tools or applications (including those developed by, or licensed from, a third party) made available by You to the Services.
We shall make the purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
Unless otherwise specified in the applicable Order Form, (i) Services are purchased as Subscriptions and may be accessed by no more than the specified number of Users specified in the Order Form, (ii) additional Subscriptions may be added during the applicable Subscription Term at the same pricing as that for the pre-existing Subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional Subscriptions are added, and (iii) the added Subscriptions shall terminate on the same date as the pre-existing Subscriptions. Unless otherwise specified in the applicable Order Form, Subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
We shall: (i) provide Our basic support for the purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the purchased Services and which We shall schedule to the extent practicable during the hours from 9:00 p.m. to 6:00 a.m. Eastern Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the purchased Services only in accordance with applicable laws and government regulations.
You shall: (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) be responsible for ensuring that Your Systems meet the specifications set forth in the Documentation, (iv) be responsible for providing Us with the right to access and use Your Data and Your Systems, solely as necessary for Us to provide the Services in accordance with this Agreement, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (vi) use the Services only in accordance with the Documentation and applicable laws and government regulations. You shall not: (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services 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, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
Services may be subject to other limitations, such as, for example, limits on disk storage space, API usage and other limitations as specified in the Documentation.
We shall design, engineer and maintain appropriate administrative, physical, and technical safeguards, in accordance with industry practice, for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or Your Systems, including any intellectual property rights therein.
Notwithstanding the aforementioned, if you as a data controller are subject to the EU General Data Protection Regulation, Regulation (EU) 2016/679, Parties have agreed to enter into a data processor agreement prior to any processing of Your Data. The data processor agreement is attached to this Agreement (Exhibit A) and together with its annexes, forms an integral part of this Agreement.
As used herein, “Confidential Information” means all confidential 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. Your Confidential Information shall include Your Data and Your Systems; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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 (other than Your Data and Your Systems) shall 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. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with Your evaluation of additional services offered by Us from time to time.
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
The Services may contain features designed to interoperate with Third-Party Applications (e.g., Salesforce, Google, LinkedIn or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form. Unless specified otherwise in the applicable Order Form, Subscription fees are based on annual periods that begin on the subscription start date and each anniversary thereof; therefore, fees for Subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.
If You provide credit card information to Us, You authorize Us to charge such credit card for all Subscriptions listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 13.2 (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, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Subscriptions will only become active upon payment receipt. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
If any charges are not received from You by the due date, then at Our discretion, (a) such 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, from the date such payment was due until the date paid, and/or (b) we may suspend Our services to You until such charges are paid in full. We will give You at least 5 days’ prior notice that Your account is overdue, in accordance with Section 14.1 (Manner of Giving Notice), before suspending services to You.
We shall not exercise Our rights under Section 8.3 (Overdue Charges & Suspension of Service) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not: (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to: (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
We warrant that: (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the Documentation, and (iii) subject to Section 7 (Third-Party Applications), the functionality of the Services will not be materially decreased during a Subscription Term. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.
You warrant that You have validly entered into this Agreement and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Beta Services”). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never reinstate them.
We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You: (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You without your prior approval unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You: (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 10.1 (Our Warranties) above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your Subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, Our use of Your Systems to provide the Services in accordance with this Agreement, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We: (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
This Section 11 (Mutual Indemnification) 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 Section.
NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $50,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT FOR PURCHASED SERVICES).
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
This Agreement commences on the date You accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated.
Subscriptions purchased by You are activated and commence upon payment receipt and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall 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 such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing change at least 30 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.
A party may terminate this Agreement for cause immediately upon written notice to the other party thereof: (i) if the other party materially breaches its obligations under this Agreement and, after receiving written notice identifying such material breach in reasonable detail, fails to cure such material breach within 30 days from the date of its receipt such notice; provided, however, in the case of a material breach that cannot reasonably be cured within such 30-day period (which shall necessarily exclude, for the avoidance of doubt, any payment default), the non-breaching party may terminate this Agreement following such 30-day period only if the breaching party shall have failed to commence substantial remedial actions within such 30-day period and to use reasonable efforts to pursue the same; 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.
Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
For a period of 30 days after the effective date of termination of a Purchased Services subscription, You will be able to access Your Data for purposes of exporting Your Data. After such 30-day period, We shall have no obligation to maintain or provide access to any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. Therefore, You must export Your Data within 30 days after the effective date of termination or Your Data will be permanently lost.
Section 6 (Confidentiality), 8 (Fees and Payment for Purchased Services), 9 (Proprietary Rights), 10.3 (Disclaimer), 11 (Mutual Indemnification), 12 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Exporting Your Data upon Termination), this 13.6 (Surviving Provisions), 14 (Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim), certified or registered mail (in each case, return receipt requested) or nationally recognized overnight courier (with all fees pre-paid). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York except for its conflicts of laws principles. Each party irrevocably consents and submits to the exclusive jurisdiction of the courts of any state or Federal court sitting in the Manhattan Borough of the City of New York in the State of New York, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
The Services, other technology We make 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. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
You have 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 You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us (firstname.lastname@example.org).
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
There are no third-party beneficiaries to this Agreement.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 8.2 (Invoicing and Payment).
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This Data Protection Addendum (“Addendum”) amends and forms part of the Master Subscription Agreement (“Agreement”) between Chili Piper, Inc. (“Chili Piper”) and Customer. For the purposes of this Addendum, Chili Piper and Customer shall be referred to as “Parties” and individually as “Party.” In consideration of the mutual obligations set forth herein, the Parties hereby agree that the terms and conditions set forth below shall be added as an Addendum to the Agreement. In the event of a conflict between the terms of the Agreement and this Addendum, the terms of this Addendum govern.
1. 6 “Controller” shall have the same meaning as “controller” or “business” under any Applicable Data Protection Laws.
2.1 During the course of the Agreement, and from time to time, Customer may provide Chili Piper, or provide access to Customer Personal Information for the purposes of Processing pursuant to the Agreement and this Addendum.
3.1 The Parties acknowledge and agree that when Chili Piper Processes Customer Personal Information under the Agreement and this Addendum, Customer operates as the Controller and Chili Piper operates as the Processor.
3.2 Customer represents and warrants that it is and will at all relevant times remain duly and effectively authorized to give the instructions to Chili Piper concerning the Processing of Customer Personal Information pursuant to the Agreement and this Addendum.
4.1 Chili Piper and Customer agree to comply with all Applicable Data Protection Laws as it relates to the Processing of Customer Personal Information under the Agreement and this Addendum.
5.1.1 Chili Piper shall only Process Customer Personal Information for the purpose of the provision of the Services and in accordance with Customer’s documented instructions, unless additional Processing is required by Applicable Data Protection Laws, in which case Chili Piper shall Process Customer Personal Information to the extent permitted by the Applicable Data Protection Laws.
5.1.2 Customer hereby instructs Chili Piper, and authorizes Chili Piper to instruct each Sub-Processor, to Process Customer Personal Information in accordance with the Agreement and this Addendum, and to comply with all documented instructions provided by Customer where such instructions are consistent with the terms of the Agreement, this Addendum, and Applicable Data Protection Laws.
5.1.3 To the extent Chili Piper considers an instruction from Customer to be infringing upon any Applicable Data Protection Laws, Chili Piper shall immediately notify Customer of said infringement.
5.2 Details of Processing
5.2.1 The subject-matter of the Processing of Customer Personal Information is the performance of the Services set forth in the Agreement, including meeting automation. The duration of the Processing is for the term of the Agreement. The nature and purpose of the Processing includes providing the Services set forth in the Agreement, including to facilitate meeting creation, updating, re-scheduling, deletion, and reminders. The types of Customer Personal Information being Processed includes meeting date and time, title, description, guest list, and names and email addresses. The types of data subjects include: (i) Customer’s representatives and end-users; (ii) Customer’s employees, contractors, and vendors; and (iii) individuals attempting to communicate or transfer Customer Personal Information to users of the Services.
5.2.2 The Parties agree that any transfer, disclosure, or making available of Customer Personal Information by Customer to Chili Piper under the Agreement and this Addendum is not intended to be a Sale.
5.2.2 Chili Piper is prohibited from Selling Customer Personal Information it receives or has access to under the Agreement and this Addendum. Chili Piper is further prohibited from retaining, using, disclosing, or sharing Customer Personal Information it receives from Customer for any purpose other than to perform the Services.
5.3.1 If permissible under the Agreement, Chili Piper may engage Sub-Processors in connection with the provision of the Services, including but not limited to for the Processing of Customer Personal Information.
5.3.2 When requested by Customer, Chili Piper shall make available to Customer an up-to-date list of all Sub-Processors used for the Processing of Customer Personal Information.
5.3.3 Chili Piper shall provide reasonable prior written notice to Customer of the appointment of any new Sub-Processor, including details of the Processing to be undertaken by the Sub-Processor. If, within fifteen (15) calendar days of receipt of that notice, Customer notifies Chili Piper in writing of any reasonable objections to the proposed appointment, Chili Piper shall work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of the proposed Sub-Processor.
5.3.4 Chili Piper has or shall enter into a written agreement with each Sub-Processor containing data protection obligations not less protective than those in this Addendum. Chili Piper shall be responsible for the acts of its Sub-Processor as it relates to the provision of Services and the Processing of Customer Personal Information. Upon reasonable written request, Chili Piper shall provide CUSTOMER with a copy of any SubProcessor agreements, subject to protections of confidentiality, trade secrets, and other lawfully protected information.
5.4.1 Chili Piper agrees to take all reasonable steps to ensure that persons authorized to Process Customer Personal Information under the Agreement and this Addendum are: (i) bound by appropriate contractual obligations or are under appropriate statutory obligations of confidentiality, data protection, and data security; and (ii) Process Customer Personal Information only upon the instructions of Customer, unless required to do pursuant to Applicable Data Protection Laws.
5.4.2 Chili Piper agrees to limit access to Customer Personal Information to those individuals who need to know / access the relevant Customer Personal Information to perform the Services.
5.5.1 Chili Piper certifies it understands and will comply with the restrictions set forth in this Section 5.
6.1 Chili Piper shall implement and maintain appropriate and reasonable technical, physical, and organizational safeguards appropriate to the sensitivity of the Customer Personal Information being Processed under the Agreement and this Addendum, and in accordance with Applicable Data Protection Laws (“Security Measures”).
7.1 In the event of a Data Security Incident, Chili Piper shall promptly notify Customer at the earliest opportunity upon becoming aware of the Data Security Incident. In any such notification, Chili Piper shall provide Customer with sufficient information, as available at the time of notification, to assist Customer in assessing the Data Security Incident.
7.2 Unless required by Applicable Data Protection Laws or other applicable legal obligation (statute, court order, contract), Chili Piper will promptly notify Customer of any third-party legal process relating to a Data Security Incident of which Chili Piper is aware.
8.1 Upon reasonable written request, Chili Piper will reasonably cooperate with and provide reasonable assistance to Customer as it relates to Customer’s undertaking of any data protection impact assessments and/or prior consultations with any appropriate authority under Applicable Data Protection Laws.
9.1 Chili Piper shall make available to Customer, upon reasonable written request, information reasonably necessary to demonstrate Chili Piper’s compliance with the Agreement and this Addendum, and shall allow for audits by Customer, or an auditor mandated by Customer, in relation to the Processing of Customer Personal Information under the Agreement and this Addendum.
9.2 Customer shall provide Chili Piper at least thirty (30) calendar days’ written notice in advance of any audit to be conducted under this section. The audit must be conducted during Chili Piper’s regular business hours and shall not unreasonably interfere with Chili Piper’s business activities.
9.3 If the requested audit scope is addressed in a third-party audit or certification of Chili Piper’s privacy and security controls reasonably acceptable to Customer (“Third Party Audit”) issued within the prior twelve (12) months and Chili Piper provides such report to Customer confirming there are no known material changes in the controls audited, then Customer agrees to accept the findings presented in the Third Party Audit in lieu of requesting an audit of the same controls covered by the Third Party Audit. Any Third Party Audit shall constitute confidential information consistent with the Agreement and this Addendum.
9.4 Customer shall be fully responsible for any costs and/or fees associated with any auditor appointed by Customer to execute an audit under this section.
9.5 Customer shall promptly notify Chili Piper, and no later than fourteen (14) calendar days following the close of an audit under this section, about any alleged non-compliance with the Agreement and/or this Addendum discovered during the course of the audit.
10.1 Chili Piper will stop Processing Customer Personal Information within ten (10) business days after termination of the Agreement, or earlier pursuant to written agreement by the Parties.
10.2 Upon reasonable written request by Customer, and at Customer’s election, Chili Piper will return or delete all Customer Personal Information in its possession no later than ninety (90) calendar days after termination of the Agreement.
11.1 Chili Piper shall comply with any reasonable request by Customer to correct, amend, restrict Processing, or delete Customer Personal Information, as required by Applicable Data Protection Laws, to the extent Chili Piper is legally permitted to do so.
11.2 To the extent possible, Chili Piper shall reasonably assist Customer in implementing appropriate technical and organizational measures for the fulfillment of Customer’s obligations, as reasonably understood by Chili Piper, to respond to requests by Data Subjects under Applicable Data Protection Laws.
12.1 The Parties agree that any Customer Personal Information provided by Customer to Chili Piper under the Agreement and this Addendum shall be hosted within the territorial boundaries of the United States of America (US).
12.2 To the extent the Applicable Data Protection Laws apply to the transfer of Customer Personal Information from the European Economic Area (“EEA”) and/or its Member States to countries which do not ensure an adequate level of data protection within the meaning of such Applicable Data Protection Laws, Customer and Chili Piper hereby incorporate by reference the Standard Contractual Clauses into the Agreement and this Addendum.
12.3 The Standard Contractual Clauses shall not apply to any cross-border transfer of Customer Personal Information unless legally necessary under the Applicable Data Protection Laws, together with other reasonably practicable protections as applicable, to permit the relevant cross-border transfer to take place without breach of any Applicable Data Protection Laws (“Restricted Transfer”).
12.4 Chili Piper agrees that before it commences a Restricted Transfer to a Sub-Processor, it shall ensure that one of the following is in place: (i) the Standard Contractual
12.5 Clauses are at all relevant times incorporated into the agreement between Chili Piper on the one hand and a Sub-Processor on the other; (ii) that Sub-Processor enters into an agreement incorporating the Standard Contractual Clauses with Customer; or that (iii) Chili Piper’s entry into the Standard Contractual Clauses, as an agent for and on behalf of the Sub-Processor, will have been duly and effectively authorized (or subsequently ratified) by that Sub-Processor. In the event of a conflict between the Agreement and this Addendum and any Standard Contractual Clause entered into by the Parties, the Standard Contractual Clauses shall prevail.