Scale Post, Inc.
Terms of Service
Last Updated: November 1, 2024
These Terms of Service (“Terms”) are entered into by and between ScalePost, Inc. a Delaware corporation with offices at 12819 Viscaino Road, Los Altos Hills, CA 94022 (“ScalePost”) and the entity or person placing an order for or accessing the ScalePost Service (“Customer” or “you”). These Terms govern your access to and use of the ScalePost Service. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the ScalePost Service, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the ScalePost Service.
These Terms of Service together with any Order Form(s) entered into by the parties are collectively referred to as the “Agreement”. If you are accessing or using the ScalePost Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. Customer accepts and agrees to be bound by the Agreement by executing an Order Form or by clicking a box accepting this Agreement. The effective date of this Agreement is the earlier of the effective date of the Order Form and the date Customer clicks a box accepting this Agreement (the “Effective Date”).
The ScalePost Service is designed to enable, among other things: (i) customers that are AI/LLM customers (“AI/LLM Customers”) to retrieve and access content (the “Publisher Content”) published by third party publishers (“Publishers”) on the Third Party Publisher’s websites (“the Publisher Sites”) for which the AI/LLM Customer has purchased a license from the Publisher and (ii) customers that are Publishers to manage the licensing of their Publisher Content to AI/LLM Customers and the unauthorized access and scraping of their Sites with bot blocking tools.
1. DEFINITIONS
As used in this Agreement, defined terms shall have the meaning accorded to such terms herein and in Exhibit A (Defined Terms) attached hereto.
2. SCALEPOST SERVICE; PUBLISHER CONTENT
Subject to and in accordance with this Agreement, ScalePost will make the ScalePost Service available to Customer in accordance with the Agreement and will provide standard technical support services. The ScalePost Service enables AI/LLM Customers AI/LLM Customers to retrieve the licensed Publisher Content from the Publisher Sites and enables Publishers to set the terms and pricing for the Publisher Content and receive payment from the AI/LLM Customers. Notwithstanding the foregoing, the AI/LLM Customer and Publisher are solely responsible for negotiating and entering into a license agreement and contract and for their contractual relationship with each other. ScalePost assumes no responsibility or liability for any Publisher Content or Publisher Sites or for the contractual relationship between an AI/LLM Customer and a Publisher. Any disputes between an AI/LLM Customer and a Publisher shall be solely between them and shall not involve ScalePost and ScalePost shall have no liability therefor.
3. ACCESS GRANT; RESTRICTIONS
3.1 Access Grant; Users. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, ScalePost grants to Customer during the Term a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable right to allow Users to access and use the ScalePost Service for Customer’s own internal business purposes in accordance with the Documentation. If Users are Customer’s third-party independent contractors, consultants, agents or third parties with whom Customer does business, Customer agrees that such Users may not be competitors of ScalePost. Customer shall be responsible for the compliance of its Users with this Agreement and will promptly notify ScalePost of any suspected or alleged violation of the terms and conditions of this Agreement. Customer will reasonably cooperate with ScalePost with respect to: (i) investigation by ScalePost of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. ScalePost may suspend or terminate any User’s access to the ScalePost Service upon notice to Customer in the event ScalePost reasonably determines that such User has violated any terms of this Agreement. ScalePost may suspend access to the ScalePost Service in the event a reasonable threat to the technical security or technical integrity of the ScalePost Service exists or if any amount due under this Agreement is not received by ScalePost when due.
3.2 Restrictions; Use Guidelines. Customer will not directly or indirectly: (a) adapt, alter, modify, improve, translate or create derivative works of the ScalePost Service (or any part thereof including the ScalePost Technology); or (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the ScalePost Service; or (c) provide, maintain access to, or use the ScalePost Service in any manner inconsistent with this Agreement or the Documentation. Customer shall, and shall ensure that its Users will, use the ScalePost Service subject to the limited access rights granted in this Agreement and solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the ScalePost Service available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the ScalePost Service, the ScalePost Technology or the data contained therein or disrupt any servers or networks connected to the ScalePost Service, or use any device, software or routine that causes the same, or disobey any requirements, procedures, policies or regulations of networks connected to the ScalePost Service; (iii) attempt to gain unauthorized access to the ScalePost Service or the ScalePost Technology or any related systems or networks; (iv) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the ScalePost Service or use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the ScalePost Service to monitor, extract, copy or collect information or data from or through the ScalePost Service, or engage in any manual process to do the same; (v) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the ScalePost Service, third-party systems or third-party content; (vi) remove, alter or obscure any proprietary notices associated with the ScalePost Service; (vii) access or use ScalePost Service in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); (viii) use the ScalePost Service in violation of any applicable, law, rule regulation or guideline; (ix) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the ScalePost Service or breach any security or authentication measures; (x) utilize the ScalePost Service in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store Malware; (xi) provide access to the ScalePost Service to a competitor or access or use the ScalePost Service to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the ScalePost Service, (c) copy any ideas, features, functions or graphics of the ScalePost Service, or (d) determine whether the ScalePost Service are within the scope of any patent; or (xii) permit direct or indirect access to or use of ScalePost Service in a way that circumvents a contractual usage limit, or use ScalePost Service to access, copy or use any of ScalePost intellectual property except as permitted under this Agreement, an Order Form, or the ScalePost Documentation.
4. ACCESS CREDENTIALS
Users will receive Access Credentials to access the ScalePost Service. The technical capabilities and access rights available to each type of User within the ScalePost Service shall be as set forth in the ScalePost Documentation. Customer will require its Users to keep Access Credentials secure and confidential and will promptly notify ScalePost of any unauthorized use of any Access Credentials. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the ScalePost Service is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the ScalePost Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing.
5. FEES AND PAYMENT
ScalePost uses a third party payment processor (“Payment Processor”) to process the amounts payable through the ScalePost Service. All payments will be subject to the Payment Processor’s terms which are linked to in the ScalePost Service. ScalePost disclaims all liability for the Payment Processor and the processing of amounts payable through the ScalePost Service. Through the Payment Processor, the ScalePost Service enables AI/LLM Customers to make payments to Publishers and ScalePost AI will retain a portion of such payment in consideration for making the ScalePost Service available. The portion retained by ScalePost AI will be as established by ScalePost and disclosed through the ScalePost Service. In addition, ScalePost may charge monthly, usage or other fees for use of the Scale Post Service, as disclosed through the ScalePost Service. By accessing and using the ScalePost Service, Customer agrees to the payment of all amounts payable to ScalePost through the Service and agrees that ScalePost may retain and/or offset from amounts due to Customer any amounts owed to ScalePost by Customer. If Customer adds a payment method to its account, Customer authorizes ScalePost and its Payment Processor to collect and store Customer’s payment method information. Customer may be subject to additional fees imposed by the Payment Processor in connection with processing Customer’s payments. All amounts paid by Customer are nonrefundable, except as expressly otherwise set forth herein, are payable in U.S. dollars and exclude taxes, levies, duties, sales and use taxes, value added tax, withholdings and similar governmental assessments of any nature excluding taxes on ScalePost’s net income and employees (“Taxes”). Customer is responsible for paying all Taxes. If ScalePost has the legal obligation to collect Taxes for which Customer is responsible, ScalePost will invoice Customer and Customer will pay that amount unless Customer provides ScalePost with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments to ScalePost free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to ScalePost will be Customer’s sole responsibility, and Customer will provide ScalePost with official receipts issued by the appropriate taxing authority, or such other evidence as ScalePost may reasonably request, to establish that such taxes have been paid.
6. CONFIDENTIALITY
6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the ScalePost Service, ScalePost Technology, ScalePost System Analytics, and ScalePost Documentation constitute Confidential Information of ScalePost. Further, for the avoidance of doubt, the Customer Inputs constitute Confidential Information of Customer. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement. Customer agrees that ScalePost shall have the right to list Customer as a customer of ScalePost, use Customer’s name and logo, in ScalePost’s on and offline marketing collateral including as a customer on ScalePost’s customer lists, including a short description of the ScalePost Service provided to Customer.
7. WARRANTIES
7.1 Warranties by Both Parties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations, and guidelines, including, without limitation, those related to privacy and data security.
7.2 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES), SCALEPOST MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SCALEPOST SERVICE, THE SCALEPOST DOCUMENTATION, THE SCALEPOST TECHNOLOGY, THE PROFESSIONAL SERVICES, BETA VERSIONS OF SCALEPOST SERVICE FEATURES OR FUNCTIONALITY, PUBLISHERS, PUBLISHER SITES, PUBLISHER CONTENT, AI/LLM CUSTOMERS, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Scale Post does not warrant or endorse and does not assume and will not have any liability or responsibility to Customer or any other person for any third-party services, third-party materials or third-party websites, or for any other materials, products, or services of third parties, including without limitation the Publishers, the Publisher Content and/or the Publisher Sites.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SCALEPOST’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SCALEPOST SERVICE AGAIN OR PAYING THE COST OF SUPPLYING THE SCALEPOST SERVICE AGAIN.
8. INDEMNIFICATION
8.1 ScalePost Indemnity. ScalePost shall defend (at ScalePost’s expense), Customer and its affiliates and its and their officers, directors and employees from and against any third-party claims, suits, and proceedings ( “Claims”) brought against Customer or its officers, directors or employees by a third party contending that ScalePost Service (excluding Publisher Content) infringes any Intellectual Property Rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by ScalePost in settlement of the Claim. In the event that the ScalePost Service or any part thereof is likely to, in ScalePost’s sole opinion, or do become the subject of an infringement related Claim, and ScalePost cannot, at its option and expense, procure for Customer the right to continue using the ScalePost Service or modify the ScalePost Service to make them non infringing, then ScalePost may terminate this Agreement with notice to Customer. ScalePost shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the ScalePost Service is the basis of the Claims; (ii) the use or combination of the ScalePost Service or any part thereof with software, hardware, or other materials not developed by ScalePost if the ScalePost Service or use thereof would not infringe without such combination; (iii) modification of the ScalePost Service by a party other than ScalePost, if the use of unmodified ScalePost Service would not constitute infringement; (iv) use of the ScalePost Service in violation of this Agreement or the ScalePost Documentation if the claim would not have arisen but for such breach or unauthorized use; or (v) the Publisher Content or use of the Publisher Content in AI or MLL models . The foregoing states ScalePost’s entire liability and Customer’s exclusive remedy for infringement of third party intellectual property rights.
8.2 Customer Indemnity. Customer shall defend (at Customer’s expense) ScalePost and its affiliates, and its and their employees, officers, and directors brought against Customer or its officers, directors or employees by a third party from and against all Claims made or brought against ScalePost by a third party which Claims (i) allege that Customer’s use of the ScalePost Service infringes the Intellectual Property Rights of, or has otherwise harmed, a third party, other than Claims for which Scale Post indemnifies Customer pursuant to Section 8.1; (ii) if Customer is a Publisher, arise out of or relate to the Publisher Sites and/or Publisher Content, including without limitation claims of intellectual property rights infringement or violation of a third party’s rights of privacy or publicity, or any claims by an AI/LLM Customer; (iii) if Customer is an AI/LLM Customer, arise out of or relate to any use or unauthorized of Publisher Content or any claims by a Publisher; or (iv) arise out of or relate to any use of the ScalePost Service in violation of this Agreement or the ScalePost Documentation, and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Customer in settlement of the Claim. The foregoing states Customer’s entire liability and ScalePost’s exclusive remedy for infringement of third party intellectual property rights.
8.3 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party. Neither party shall settle any claim without the other party’s prior written consent which will not be unreasonably withheld or delayed. The indemnified party may participate in the defense of the claim at the indemnified party’s expense.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING DAMAGES ARISING FROM A PARTY’S MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS IN SECTION 8, (A) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY CUSTOMER TO SCALEPOST DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING DATE ON WHICH THE FIRST CLAIM AROSE AND $100 AND (B) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES. THE FOREGOING LIMITATIONS SHALL NOT LIMIT CUSTOMER’S LIABILITY TO MAKE PAYMENT OF UNDISPUTED FEES DUE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
10. TERM AND TERMINATION
The term of this Agreement will commence on the Effective Date and will continue for one (1) year or the earlier termination of this Agreement as provided in this Section 10 (the “Initial Term”) and thereafter shall renew for successive one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party notifies the other party of its non-renewal of the Agreement at least 30 days prior to the end of the then-current term. Upon termination of this Agreement for any reason, all Order Forms shall immediately terminate. This Agreement and any Order Form may be terminated: (a) by ScalePost if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from ScalePost of such failure; or (b) by either party (the “Non-breaching Party”) effective immediately upon written notice containing an explanation of the alleged breach to the other party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party. Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the ScalePost Service will immediately terminate, Customer and its Users will immediately cease all use of the ScalePost Service, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Sections 1, 5, 6, 7.3, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11. GENERAL
11.1 Governing Law; Jurisdiction; Jury Trial Waiver. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall pay on demand all of ScalePost’s reasonable attorney fees and other costs incurred by ScalePost to enforce this Agreement or to collect any fees or charges due to ScalePost under this Agreement following Customer’s breach of its payment obligations under any Order Form or Statement of Work. In any dispute arising hereunder, the parties expressly agree to waive any right to a trial by jury.
11.2 Export; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the ScalePost Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use ScalePost Service in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of ScalePost’s 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 ScalePost.
11.3 Severability; Waiver; Remedies. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, (including without limitation any nondisclosure agreements previously executed by the parties), proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by ScalePost with respect to future functionality or features for the ScalePost Service. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any modification to these Terms or any Order Form shall require mutual written agreement of the parties.
11.6 No Assignment. Except as otherwise permitted herein, neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, failure of utility, telecommunications and/or service providers or any other event beyond the control of such party (“Force Majeure Events”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. ScalePost’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
11.9 Notices. All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd) day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10 ScalePost Intellectual Property Rights. The ScalePost Service, the ScalePost Technology, the ScalePost System Analytics, and the ScalePost Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of ScalePost and its licensors. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by ScalePost and its licensors. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software code underlying the ScalePost Service, or any other ScalePost Technology, in either object or source code form. Further, in the event Customer provides ScalePost any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Services, the ScalePost Service or the ScalePost Technology (including Customer and its Users), (collectively “Feedback”), including without limitation in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to ScalePost a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement") incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
11.11 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement, any Order Form delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement, the Order Form.
11.12 Federal Government End Use Provisions. ScalePost provides the ScalePost Service, 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 ScalePost Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with ScalePost 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.
11.13 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Exhibit A: Defined Terms
“Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the ScalePost Service.
“ScalePost Service” means the version of the ScalePost software as a service offering made generally commercially available by ScalePost as of the Effective Date, and all Updates thereto made generally commercially available by ScalePost during the Term. ScalePost reserves the right to modify the ScalePost Service on a continuous basis
“ScalePost Documentation” means user guides, manuals and other materials, whether in print or electronic form, made available to Customer from time to time during the Term (including through the ScalePost Service) that include descriptions of the features and functions of the ScalePost Service and instructions regarding the use of the ScalePost Service.
“ScalePost System Analytics” means anonymized information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived from the use of the ScalePost Service and/or ScalePost Technology which is used by ScalePost to provide and improve the ScalePost Service and to improve the ScalePost Technology.
“ScalePost Technology” means the computer software, computer code, scripts, neural networks, machine learning, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, APIs, API Specifications, Integrations, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the ScalePost Service, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
“Malware” means viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, exploitable security vulnerabilities, disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data.
“Order Form” means ScalePost’s standard order form signed by an authorized representative of each party and pursuant to which Customer orders ScalePost products and/or services and which sets forth the applicable subscription fees. Each Order Form will also set forth any entitlements, limitations or restrictions, such as limitations on number of Users.
“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the ScalePost Service made generally commercially available by ScalePost to its customers as part of the ScalePost Service and any of the foregoing for which Customer pays an additional fee to ScalePost.
“User” means an individual authorized by Customer to use the ScalePost Service, and who has been assigned Access Credentials. “Users” may include, for example, employees, independent contractors, consultants, service providers to and agents of Customer. Users may not include competitors of ScalePost.
