GO CULTURE TERMS OF SERVICE

Terms of Service

These Terms of Service (“Agreement”) govern Customer’s access and use of Go Culture’s products and services, unless Customer has fully executed a Master Service Agreement with Go Culture in which case such Master Service Agreement governs.  Capitalized terms have the definitions set forth herein.  By accepting this Agreement, either by: (1) clicking a box indicating acceptance; (2) executing an Order Form that references this Agreement; or (3) using Go Culture’s products and services, Customer agrees to the terms of this Agreement.  If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates.  If the individual accepting this Agreement does not have such authority or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the products or services.  Customer and Go Culture may be referred to in this Agreement individually as a “party” or jointly as the “parties.” This Agreement governs all Services, as defined below, provided by Go Culture to Customer.  Go Culture may update or make changes to these terms from time to time.  Go Culture encourages Customer to periodically review and check this Agreement for updates to stay informed about the terms that govern Customer’s use of the Services.  Customer’s continued use of the Services after Go Culture makes any changes is deemed to be an acceptance of those changes.  The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose, or as otherwise restricted by this Agreement.  Go Culture’s direct competitors (or third parties acting on behalf of such direct competitors) are prohibited from accessing the Services.

1. Definitions. For purposes of this Agreement:

“Administrative User” means a user of the Service who has administrative rights to configure the Service, including setting up Users.

“Authorized Purpose” means the assessment, education, and coaching of Authorized Users who are participating in an intercultural, diversity, and/or inclusion program.

“Authorized Users” means, collectively, the Administrative User and the limited number of Users granted access to the Services for an Authorized Purpose under an Order Form and this Agreement. 

“Confidential Information” means any non-public information or data that is disclosed by one party to the other party pursuant to this Agreement, including all information or material which (i) gives a party some competitive business advantage, gives a party the opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of a party; and (ii) which is either (a) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (b) known by the parties to be considered confidential and proprietary or (c) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. Without limitation, Documentation is deemed the Confidential Information of Go Culture.

“Customer Data” means content and data provided by Customer or a User in connection with the Service.  The term “Customer Data” excludes Operational Data and User Assessment Data.

“Documentation” means Go Culture’s standard documentation, materials, specifications, user manuals, and help documents generally made available by Go Culture in connection with the Services, as may be modified from time to time by Go Culture.

“Effective Date” means the date that this Agreement is executed or otherwise accepted by the parties.

“Operational Data” means aggregated and statistical data about the Service, including without limitation performance information related to the provision, operation or improvement of the Service.  Operational Data shall not include any personally identifiable information under Privacy Laws.

“Order Form” means an order form, agreement, purchasing document or other similar document, such as a statement of work, from Go Culture to Customer delivered in connection with a purchase under this Agreement. The Order Form will include the Initial Term, Fees, and payment terms.  The Order Form is incorporated by referenced and attached as Exhibit A of this Agreement.

“Platform” means Go Culture’s proprietary application software and/or Website, including modules, functions, and features generally made available by Go Culture to its customers, and all technology resources and infrastructure supporting the Services.  The Platform includes all updates, releases, improvements, and modifications to the Platform.

“Privacy Laws” means all applicable privacy, security, and data protection laws, rules, and regulations in any jurisdiction.

“Privacy Policy” means Go Culture’s Privacy Policy which can be found at www.goculture.com/privacy-policy or such other URL locations as Go Culture may provide from time to time.

“Services” means Go Culture’s Software and Documentation, including assessments, audio or video content, and related tools and content in support of the Authorized Purpose.  The Service includes the provision of a hosted basis of non-exclusive use and access to the Software, Documentation, all related apps and technologies, and associated hosting and support services as described herein.

“Software” means the object code version of any software or Documentation that may be licensed by Go Culture to Customer under an Order Form. To the extent Go Culture delivers any updates or enhancements to Customer as part of the Services, Documentation, or Support, such updates and enhancements will be deemed included in the definition of “Software.”

“Support” means any maintenance and support of any Software or Documentation provided by Go Culture.

“Term” means the time period from the Effective Date until termination of this Agreement.  The Term shall include the Initial Term and all Renewal Terms.

“Users” means any of Customer’s employees, contractors, faculty, staff, or students that the Customer provides access to the Services for an Authorized Purpose.

“User Assessment Data” means individual and unaggregated data about the User’s assessment participation and assessment results in connection with the Services.

“Website” means www.goculture.org, www.goculture.com, all of their subdomains and aliases, and such other websites that Go Culture communicates to the Customer and that the Customer may access the Service.

1. Services.
1. Grant of License. In accordance with, and subject to, the terms and conditions of this Agreement, during the Term, Go Culture hereby grants to Customer and Customer’s Authorized Users, solely for internal purposes, and not for resale or publication, a limited, non-exclusive, non-sublicensable, non-transferable, fully-paid, royalty-free license to use and access the Services exclusively through the Platform. Subject to the foregoing limited licenses, Customer is not being granted any right, title, or interest in or to the Software. All such rights are expressly reserved by Go Culture.
2. Access and Use Rights.  Customer may use the Services exclusively for the Authorized Purpose, by the number of Authorized Users, and only to the extent Customer has paid all Fees due to Go Culture.  Customer will be responsible for providing its own internet access to the Platform.
3. Limitations on Use.  Customer will use the Services solely for Customer’s internal business purposes.  In using the Services, Customer will: (i) not permit unauthorized use of the Services, including use by people or entities that are not Authorized Users, (ii) not infringe or violate the intellectual property rights, privacy, or any other rights of Go Culture or any third party, or any applicable law, and (iii) ensure that each User uses a unique user ID and password.  Customer shall not (i) copy, reproduce, or store in any media the Services, any content thereof, or the Documentation; (ii) create any derivative works from the Services; (iii) resell, lease, or sublicense the Services or any part thereof; (iv) provide training or consulting services to people or entities who are not Authorized Users; (v) make any part or portion of the Services publicly available through a website or other means; (vi) display or allow access to or use of the Services by any person other than the Authorized Users; or (vii) use the Services in any way that would violate a law or regulation on contrary to its described or intended use.  Customer shall immediately notify Go Culture of any known unauthorized use of the Services.
4. Authorized User Conditions to Use.  As a condition to access and use the Services, each User shall agree to abide by the terms of Go Culture’s Terms of Use, which it may modify from time to time.  Customer shall be responsible and liable for its Authorized Users’ use of the Services and its Authorized Users’ compliance with Go Culture’s Terms of Use and the provisions of this Agreement.
5. Platform Changes.  Go Culture may, in its sole discretion, make any changes to Platform that it may deem necessary or useful to  maintain or enhance (a) the quality or delivery of the Services, (b) cost efficiency or performance of the Services, or (c) to comply with applicable law.
6. Acceptance. All sales are final, non-refundable, and non-returnable except with respect to Services that do not meet applicable specifications in the relevant Documentation or that are not identified in the Order Form. Inspection and acceptance of the Services shall be Customer’s responsibility. Customer is deemed to have accepted the Services once an Order Form is signed and sent to Go Culture for processing. Other than for Go Culture’s failure to provide the Services, Customer irrevocably waives any right to revoke acceptance.
7. Customer Authorized Users. The Services are provided on an Authorized User basis.  Customer’s Users may not exceed the Authorized User limit specified in the Order Form.  If Customer wishes to increase the number of Authorized Users, Customer shall provide notice to Go Culture and enter into a new or additional Order Form to be incorporated hereunder.  Customer shall maintain accurate records regarding the number of Customer’s Users and shall make such information promptly available to Go Culture upon request.  Go Culture may monitor Customer’s Users.  Unless otherwise set forth in an Order Form, when the number of Customer’s Users exceed the number of Authorized Users, Customer shall, upon receipt of Go Culture’s invoice, pay additional fees on a proportionate basis for the excess Users in minimum blocks of 10% of the Authorized Users for prior excess use and for the remainder of the Term.
8. Intellectual Property. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code). Go Culture owns all right, title, and interest, including intellectual property rights, in the Platform, Website, Software, Documentation, Operational Data, and Services, including the look, organization, designs, algorithms, template, data models, logic flow, text, graphics, logos, report formats, screen displays, and all enhancements, modifications, and updates thereto. Go Culture’s trademarks, brand names, copyright, and other proprietary rights notices will be included in the Services, Software, and Documentation and shall not be removed, modified, obscured, or hidden.  Except for express licenses granted in this Agreement, Go Culture does not grant or assign to Customer any right, title, or interest, express or implied, in or to Go Culture’s intellectual property. Go Culture reserves all rights in such property.
9. Feedback. Customer may provide Go Culture with suggestions, comments, questions, ideas, or other feedback (collectively, “Feedback”) with respect to the Services. Feedback is voluntary. All Feedback is non-confidential. Go Culture may use Feedback for any purpose, commercial or otherwise, without acknowledgement, compensation, or obligation of any kind. To the extent a license is required under any Customer intellectual property rights to make use of the Feedback, Customer grants Go Culture an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Go Culture’s business, including the enhancement of the Services.
2. Data.
1. Customer Data. Customer grants Go Culture a non-exclusive, world-wide, royalty-free license to use, reproduce, create derivative works from, distribute, transfer, perform, and display such data and other information input by Customer into the Services (“Customer Data”): (i) to perform Go Culture’s obligations under this Agreement; (ii) in compliance with the Privacy Policy and (iii) as may be required by law. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Go Culture for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting Go Culture any right, title, or interest in the Customer Data. Customer Data shall be deemed Customer Confidential Information.
2. User Assessment Data.  User Assessment Data is the individual, unaggregated, and identifiable responses, usage, participation, and other similar information monitored, tracked, and recorded by Go Culture through the use of surveys, assessments, and other similar methods of data collection. Go Culture  shall not have any obligation, duty, or responsibility to report, share, or disclose to Customer User Assessment Data.  User Assessment Data shall not be deemed Customer Data.
3. Aggregated Data. Go Culture may use Customer Data and User Assessment Data in an aggregate, de-identified and generic manner for marketing, survey and benchmarking purposes, in the review and development of current and future Software and Services, Software usage and other similar purposes (“Aggregated Data”). Aggregated Data: (i) is used only for internal administrative purposes and general usage statistics; (ii) does not identify Customer or any individual; and (iii) to the extent such Aggregated Data is disclosed, it is only disclosed in a generic or aggregated manner for the purposes of sharing Software usage, statistical or benchmarking purposes. Aggregated Data will not be considered Customer Confidential Information.
4. Data Security. Customer Data is maintained using industry standard administrative, physical, and technical safeguards that are designed to provide for the protection of the security, confidentiality and integrity of Customer Data. Go Culture’s security safeguards include, means for preventing access, use, modification or disclosure of Customer Data by unauthorized individuals. Notwithstanding, Customer Data access may be provided (i) to Go Culture and other personnel to the extent necessary provide Services and Support; (ii) as compelled by law in accordance with Section 7.1(v); (iii) as set forth in the Privacy Policy; or (iv) as expressly permitted by Customer.
5. Privacy. The collection, use, and disclosure of Customer Data in connection with Customer’s use of the Services is subject to the Privacy Policy. Customer hereby acknowledges and agrees that all Users will review and consent to the Privacy Policy before accessing or using the Services. By using the Services, Customer, and each User acknowledges that the Customer Data will be processed in accordance with the Privacy Policy and this Agreement and may be processed in a country where it was collected, as well as in countries where privacy laws may be different or less stringent. By using the Services or submitting Customer Data via the Services, Customer and each User expressly consents to such processes. To the extent Customer or a User provides personal information about a named person or entity that is not a User, Customer or the applicable User represents that it has that person’s or entity’s consent to do so.
3. Customer Obligations.
1. Connectivity. Customer is solely responsible for all telecommunication or Internet connections and associated fees required to access and use the Services, including all Documentation and Software on the Platform. Go Culture is not responsible for (i) Customer’s access to the Internet, (ii) interception or interruptions of communications through the Internet, or (iii) changes or losses of data through the Internet.
2. User Credentials. Customer shall keep the User credentials (e.g. usernames and passwords) confidential and not disclose any such credentials to any third party. In addition, Customer shall notify Go Culture immediately upon discovery of the disclosure of any such credentials, and upon any termination of the engagement of any employees or agents of Customer with knowledge of any such credentials, so that such credentials can be changed.
3. Restrictions. Customer may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to reveal, reconstruct, or discover the trade secrets, source code, or know how underlying the Software or Services; (ii) use Go Culture’s intellectual property and Confidential Information to develop a product that is similar to the Services; (iii) use any Go Culture Confidential Information to contest the validity of any Go Culture intellectual property; (iv) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Services; or (v) use the Services in any manner or for any purpose inconsistent with the terms of this Agreement or the Documentation. Software shall only be used for the licensed number of nodes, networks, or hosts for which Customer has paid the applicable fees.
4. Customer Content. When accessing and using the Services, Customer and its employees and agents shall not include content, including, but not limited to text, audio, images, animations, or video, that is obscene, offensive, inappropriate or that violates any applicable law or regulation, contract, or privacy or other third party right, or that otherwise exposes Go Culture or its resellers to civil or criminal liability.
4. Term, Fees, and Payment.
1. Term.  The term of this Agreement will commence upon the Effective Date and will continue in effect for an initial term as set forth on the Order Form (“Initial Term”).  This Agreement shall automatically renew and extend for additional one (1) year terms (each a “Renewal Term”).  Each Renewal Term shall be subject to ninety (90) days’ notice of nonrenewal.
2. Fees. Fees will be specified by Go Culture and applicable for the period specified in the Order Form. Notwithstanding anything to the contrary herein, prices will be subject to increase in the event of an increase in Go Culture’s costs or other circumstances beyond Go Culture’s reasonable control. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Services provided and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) Term duration and quantities cannot be decreased during the applicable Term.
3. Fee Increases.  Go Culture shall be entitled to increase the Fees for any Renewal Term, upon ninety (90) days prior notice to Customer; provided, however, the Fees for any Renewal Term shall not exceed an annual ten percent (10%) increase.
4. Taxes.  All fees are exclusive of taxes, including federal, state, and local sales, use, excise, value added and similar taxes related to the Services, however designated. Customer agrees to pay, and is solely responsible for payment of, any and all such taxes (except taxes based on Go Culture’s net income) and such charges will be paid by Customer.  If Go Culture has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, Go Culture will invoice Customer and Customer will pay such amount within thirty (30) days unless Customer presents a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Due Date; Late Payments. Amounts due for the Services may be invoiced by Go Culture in full at the start of the Term, or as otherwise expressly provided in the Order Form. Customer agrees to pay the net amount of each invoice without offset or deduction within thirty (30) days after the date of Go Culture’s invoice (unless otherwise noted on the invoice). If any amount is not paid upon the due date, Go Culture shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all of Go Culture’s reasonable costs of collection, including but not limited to reasonable attorney’s fees.
6. Disputed Payments. Go Culture will not exercise its right of suspension in the event Customer provides Go Culture notice that Customer disputes such charges, in good faith, and provides Go Culture with written notice of such dispute prior to the due date, pays all undisputed charges on time, and cooperates diligently to resolve the dispute.
5. Suspension and Termination.
1. Suspension. In the event Go Culture, in good faith, believes or otherwise becomes aware of a User’s violation of this Agreement, then Go Culture may specifically request that Customer suspend such User’s access to and use of the Services. In the event Customer fails to suspend such non-compliant User, Customer hereby authorizes Go Culture to suspend such User. The duration of such suspension is at the sole determination of Go Culture and shall continue until such time as Go Culture determines that the applicable User has cured the breach resulting in such suspension. Go Culture may also suspend access and use of the Services with respect to any individual User or the Customer account to: (i) to prevent damages to, or degradation of, the Services or Go Culture’s systems; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect Go Culture from potential legal liability. Any such suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the cause of the suspension.
2. Termination.
1. If Go Culture believes, in good faith, that Customer’s ability to make payments may be impaired, or if Customer fails to pay any invoice when due and does not make such payment within ten (10) days after receipt of notice from Go Culture of such failure, Go Culture may, in its sole discretion, either: (i) suspend delivery or performance of the Services until such payment is made; or (ii) terminate this Agreement and any remaining obligations thereof. In either event, Customer shall remain liable to pay for any Services already provided by Go Culture.
2. Either party may terminate the Agreement upon a material breach of the Agreement by the other, if the breaching party does not cure the breach within thirty (30) days after receipt of written notice from the other party specifying the breach.  Additionally, Go Culture may suspend delivery or performance of the Services until such breach is cured.
3. Effects of Termination.
1. All Order Forms existing at the time of termination of this Agreement shall remain in effect and shall be performed in accordance with and subject to the terms and conditions of this Agreement (all of which shall survive with respect to such Order Forms), except for any Order Forms terminated under Section 6.2.2 above.
2. In the event this Agreement is terminated by Go Culture for cause (including nonpayment) or by Customer without cause, then all unpaid Fees associated with the then-current Term of such Order Form shall become immediately due and payable, and shall be paid by Customer to Go Culture upon the effective date of such termination.
3. Upon any termination, Customer’s right to use and access the Services shall immediately cease.
4. After the termination of this Agreement, Go Culture shall have no obligation to maintain or provide Customer Data to Customer. Go Culture may, in its sole discretion, delete or destroy any Customer Data in its possession, unless Go Culture has a legal retention obligation. Prior to the expiration or termination, Customer may request, in writing, that Go Culture provide Customer with a copy of the Customer Data in its possession and in the form and format as such Customer Data exists of the effective date of such termination.
5. The exercise of the right to terminate this Agreement and any Order Form shall be in addition to any other right and remedy provided in this Agreement or existing at law or equity that is not otherwise excluded or limited under this Agreement.
6. Confidentiality.
1. Confidential Information. During the course of this Agreement, each party may disclose to the other certain Confidential Information to the other party. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (ii) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (iii) was acquired from a third party without any breach of any obligation of confidentiality; (iv) was independently developed by a party hereto without reference to Confidential Information of the other party; or (v) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
2. Protection of Confidential Information. The parties agree to hold the other party’s Confidential Information in confidence and to protect the other party’s Confidential Information in the same manner it protects the confidentiality of its own Confidential Information, but in no event using less than reasonable care.  Except as expressly provided in this Agreement, the receiving party will not, directly or indirectly, use, disclose, copy, transfer, or allow access to the disclosing party’s Confidential Information. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to injunctive relief to prevent such unauthorized use or disclosure.
3. Return and Destruction of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other, and all summaries, copies, descriptions, excerpts or extracts thereof that are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned, and the Receiving Party shall use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts or extracts thereof in their possession upon the disclosing party’s written request. The receiving party shall have no obligation to delete or destroy copies that: (a) are contained in an archived computer system backup that was made in accordance with such party’s security, email retention, and/or disaster recovery procedures; or (b) are kept by its legal department for record-keeping, archival, or governance purposes in compliance with such party’s document retention policies. Any such retained Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.  Notwithstanding the return or destruction of the Confidential Information, the receiving party will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement. At the disclosing party’s option, the receiving party will provide written certification of its compliance with this Section.
7. Warranties and Disclaimers.
1. Go Culture Warranties. Go Culture represents and warrants to Customer that the Services will be provided in a professional, workmanlike manner consistent with this Agreement and that neither the Services Nor Software will infringe upon any patent, copyright, trade secret, or other intellectual property right. Go Culture represents and warrants that is has the legal power to enter into this Agreement.
2. Customer Warranties. Customer represents and warrants that (i) Customer has full authority and legal power to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling its obligations hereunder; (ii) Customer owns all Customer Data, or has the full right to provide the Customer Data to Go Culture, and use of Customer Data on the Platform or in connection with the Service is not subject to any covenant or obligation of confidentiality that Customer has to any other person or entity; (iii) the Customer Data does not infringe or misappropriate any copyright, trademark, trade secret, or other intellectual property right; (iv)  Customer will comply with all laws and regulations applicable to its use of the Services, including Privacy Laws; (v) Customer will not use the Services to infringe or violate any intellectual property, publicity, or other rights of any third party; and (vi) information provided by Customer, including representations regarding the number of employees and contractors employed or engaged by Customer as set forth in the Order Form, is true, correct, and current, and Customer will promptly notify Go Culture of any changes.
3. Disclaimers.
1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GO CULTURE MAKES NO WARRANTIES, EXPRESS OR IMPLIED,  INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING. GO CULTURE MAKES NO WARRANTIES AS TO INFORMATION AND DATA PROVIDED BY ANY USER THROUGH THE SERVICES.  GO CULTURE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE WILL BE TOTALLY SECURE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY GO CULTURE OR GO CULTURE’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN.
2. CUSTOMER ACKNOWLEDGES AND AGREES THAT GO CULTURE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEBSITES, COMPUTERS, OR NETWORKS. GO CULTURE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. FURTHER, EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8. Indemnification.
1. Go Culture Indemnity Obligations. Go Culture will defend and indemnify Customer from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) finally awarded against Customer, as approved via a court-approved settlement, or via binding mediation or arbitration arising from a claim by a third party that Customer’s authorized use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Go Culture is contingent upon Customer promptly notifying Go Culture in writing of such claim (provided the failure or delay in doing so shall not relieve Go Culture from any obligations to indemnify Customer except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Go Culture sole authority to control the defense or settlement of such claim and providing Go Culture reasonable assistance (at Go Culture’s sole expense) in connection therewith. If a claim of infringement under this Section occurs, or if Go Culture determines a claim is likely to occur, Go Culture will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Go Culture, Go Culture may, in its sole discretion, immediately terminate this Agreement and related Order Form and, upon return of the infringing Services from Customer, refund the fees paid for such Services, prorated over twenty-four (24) months from initial access of the Services to Customer. Notwithstanding the foregoing, Go Culture will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Go Culture, (ii) modification or alteration of the Services by anyone other than Go Culture, (iii) use of the Services in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer (collectively, the “Excluded Claims”). The provisions of this Section state the sole and exclusive remedies for any claim of intellectual property infringement arising out of or relating to the Services, Software, or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
2. Customer Indemnity Obligations. Customer will defend and indemnify and hold harmless Go Culture, its officers, directors, owners, and employees from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Go Culture as a result of any claim by a third party arising from (i) Customer’s use of the Services in breach of this Agreement, (ii) Go Culture’s authorized use of the Customer Data, (iii) Customer’s compliance with applicable laws and regulations, and (iv) the Excluded Claims. Go Culture will promptly notify Customer in writing of such claim (provided the failure or delay in doing so shall not relieve Customer from any obligations to indemnify Go Culture except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Customer sole authority to control the defense or settlement of such claim, provided that Customer may not settle any such claim unless it unconditionally releases Go Culture of all liability, and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
9. Limitations of Liability.
1. GO CULTURE SHALL NOT HAVE ANY LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR BY STATUTE OR OTHERWISE) TO CUSTOMER OR ANY THIRD PARTY FOR LOST PROFITS, LOST SALES, LOST BUSINESS, LOST DATA, OR COST OF RECREATING LOST DATA, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT AND ANY SERVICES RENDERED HEREUNDER. THE TOTAL LIABILITY OF GO CULTURE TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT AND ANY SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and Go Culture’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
2. No dispute or claim arising out of this Agreement may be brought by either party more than one (1) year after such dispute or claim accrues, except that an action for nonpayment may be brought within one (1) year of the date of the last payment.
10. Third Party Services.
1. Customer acknowledges that Go Culture may use third party services or other technology provided by third parties in order to provide the Services.  Customer acknowledges and agrees that Go Culture is not responsible for, and shall assume no obligation or liability for the availability, performance, functionality, accuracy, content, or reliability of any such external third party services.
11. Dispute Resolution.
1. Escalation.  The parties shall negotiate in good faith in order to seek to resolve any dispute or claim arising out of or in connection with this Agreement or any Order Form. 
2. Arbitration.  If the parties are unable to reach an amicable resolution within 30 days of good faith negotiation, then, upon written notice by either party to the other, such dispute or claim will be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  The arbitration will be conducted in Dallas, Texas, or such other location to which the parties mutually agree, by a single arbitrator knowledgeable of the commercial aspects of “software as a service” arrangements and intellectual property.  The parties will mutually appoint an arbitrator within thirty (30) days.  If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements.  Each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA.  The arbitration award shall be final and binding and may be enforced in any court of competent jurisdiction.
3. Equitable Relief.  Notwithstanding anything to the contrary in this Agreement, Customer agrees that Go Culture shall have the right to seek injunctive or pre-judgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of Go Culture’s Confidential Information or intellectual property rights.  Customer acknowledges, understands, and agrees that a breach or threatened breach of its obligations or limitations regarding Go Culture’s Confidential Information or intellectual property rights would result in significant competitive disadvantages and irreparable harm to Go Culture’s business and such damage would be difficult or impossible to measure or estimate accurately.  Go Culture’s rights under this Section shall be in addition to every other remedy to which it may be entitled. 
4. Governing Law. This Agreement and all Order Forms, and all matters arising out of or relating to this Agreement or any Order Form, shall be governed by and construed in accordance with the laws of the State of Texas without regard to choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. 
12. Miscellaneous Provisions.
1. Publicity. Customer agrees that Go Culture may identify Customer as a Go Culture customer and may reference Customer’s name and trademark, as well as other information pertaining to the provision and results of the Services, in case studies, on the Website, and other Go Culture promotional and marketing materials.
2. Independent Contractor. Go Culture, its personnel, agents, subcontractors and independent contractors are not employees or agents of Customer and are acting as independent contractors with respect to Customer. Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.
3. Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, pandemic, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, or telecommunications interruption, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
4. Export.  Customer agrees to comply with all relevant export laws and regulations of the United States and any other relevant local export laws and regulations which apply to the Services.  Customer acknowledges and agrees that such export control laws govern Customer’s use of the Services, and Customer agrees to comply with all such export laws and regulations.  Customer agrees that the Services, Software, or any part thereof, including data, information, programs, and/or materials resulting from the Services or Software, will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.
5. No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
6. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Go Culture. Any attempted assignment or delegation without such consent will be void and Go Culture may immediately terminate this Agreement for cause. Subject to and except as set forth in the foregoing, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their respective successors and assigns.
7. Entire Agreement; Construction; Modifications. This Agreement, including any and all Order Forms, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The parties further agree that there are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as expressly set in this Agreement. In the event of any conflict between the body of this Agreement and any Order Form, or any other agreement entered into by the parties, this Agreement shall control, unless signed in writing by the parties. In the event that the Customer, or its Users, are presented with Go Culture click-wrap, the contents of this Agreement shall supersede any conflicting terms. As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. This Agreement may not be modified, amended or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification shall be void and of no effect.
8. Purchase Order. GO CULTURE SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A CUSTOMER PROVIDED PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE AND REPLACE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
9. 13.9.Survival. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, and payment, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this Agreement.
10. 13.10.Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid; or (iii) the day of sending by email. All notices from Customer pertaining to contractual or legal matters (i.e. breach of contract, termination, indemnifiable claims, etc.) must clearly be identified and marked as Legal Notices to the address listed below.  All notices to Customer will be addressed to the account administrator designed by Customer.

Notice address for Go Culture:

Go Culture International, Inc.

Attn: Legal Department

2591 Lakeside Pkwy, Suite 100

Flower Mound, TX 75022

legal@goculture.com

1. 13.11.Severability.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.  Any provision of this Agreement found to be unenforceable or invalid shall be deemed stricken and the remainder of this Agreement shall remain in full force and effect.
2. 13.12.  Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.