Effective (New Customers): September 8, 2022
Effective (All Customers): November 3, 2022
Last Updated: September 8, 2022
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between FTP Today, Inc., a Nevada corporation whose principal place of business is 410 South Rampart Blvd Suite 390, Las Vegas, NV 89145 (“FTP Today”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and FTP Today’s provision of FTP Today’s SaaS (as defined below in Section 1.7) are governed by this Agreement, as are Customer’s authorizations to grant its own employees, customers or business partners use of the SaaS.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AUP” means FTP Today’s acceptable use policy currently posted at https://www.ftptoday.com/acceptable-use-policy.
1.2. “Customer Data”means all information processed or stored through the SaaS by Customer or on Customer’s behalf, including information included in files transferred to or from Customer through the SaaS. Customer data does not include payment records, credit cards or other information Customer uses to pay FTP Today, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
1.3. “Documentation” means FTP Today's standard manual related to use of the SaaS, currently posted at https://support.ftptoday.com.
1.4. “Guests” means any of Customer’s clients or customers or other third parties Customer gives access to the SaaS, including without limitation such companies’ agents and employees.
1.5. “Order” means an order for access to the SaaS.
1.6. “Privacy/Security Law” means privacy and security laws governing FTP Today’s handling of Customer Data (if any).
1.7. “SaaS”means FTP Today’s cloud-based system for transferring copies of computer files from one business or User to another.
1.8. “SLA” means FTP Today’s standard service level agreement currently posted at https://www.ftptoday.com/sla.
1.9. “Term” is defined in Section 11.1 below.
1.10. “User” means any company or individual that uses the SaaS on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Guests.
2. THE SAAS.
2.1. Use of the SaaS. During the Term, Customer may access and use the SaaS pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Service Levels. FTP Today shall provide the remedies listed in the SLA for any failure of the SaaS listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the SaaS, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy; provided this sentence does not restrict any Customer right to terminate this Agreement for breach where applicable. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. FTP Today is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.
2.4. SaaS Revisions. FTP Today may revise the SLA or the features and functions of the SaaS at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.
2.5. Guests. Subject to the provisions below of this Section 2.5, Customer may authorize Guests to access and use the SaaS in such numbers and according to such restrictions as are set forth in the applicable Order, solely for the following purposes: transferring computer files to or from Customer. Customer shall make no representations or warranties regarding the SaaS or any other matter, to Guests or Users or any other third party, from or on behalf of FTP Today, and Customer shall not create or purport to create any obligations or liabilities for FTP Today. FTP Today shall have no obligation to provide support or other services, SLA remedies, or other remedies to Guests.
2.6. Support. Unless the Order provides to the contrary, FTP Today shall provide the support services described at https://support.ftptoday.com/hc/en-us/articles/115002761892-Support-Maintenance-Terms.
3. SAAS FEES.
3.1. Fees. Customer shall pay FTP Today the fee set forth in each Order for each Term. FTP Today will not be required to refund fees under any circumstances. FTP Today’s invoices are due on the date of issuance if paying by credit card or within 30 days of issuance if paying by other means (e.g., as check, ACH, wire transfer). For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law.
3.2. Taxes. Amounts due under this Agreement are payable to FTP Today without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, FTP Today may require that Customer submit applicable Sales Taxes to FTP Today. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives FTP Today a valid tax exemption certificate within 30 days of the Effective Date. FTP Today’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay FTP Today the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on FTP Today’s net income.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. FTP Today shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the SaaS; or (b) give Customer Data access to any third party, except FTP Today’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, FTP Today: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data; and (d) shall comply with all Privacy/Security Laws that are applicable both specifically to FTP Today and generally to data processors in the jurisdictions in which FTP Today does business and operates physical facilities.
4.2. BAA and DPA. If executed by each party, the BAA and DPA (defined below) are incorporated into this Agreement by reference, and each governs the specified Customer Data listed below in Subsections 4.2(a) and 4.2(b). The BAA and DPA do not apply to any other data or any of the parties’ other rights or duties pursuant to this Agreement.
(a) BAA. “BAA” refers to a Business Associate Agreement referencing this Agreement and executed by each party. The BAA governs Customer Data subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
(b) DPA. “DPA” means a Data Protection Agreement referencing this Agreement and executed by each party. The DPA governs Customer Data subject to the General Data Protection Regulation of the European Union (“GDPR”).
(c) Excluded Data. If Customer and FTP Today do not enter into a BAA or DPA, as applicable, Customer may not include data subject to HIPAA and/or the GDPR, as applicable (“Excluded Data Laws”) in files transmitted by the SaaS. In that case Customer warrants that (a) it has not and will not transmit data subject to the Excluded Data Laws (“Excluded Data”), or permit transmission of Excluded Data, to FTP Today or the SaaS and, (b) to the best of Customer’s knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform FTP Today of any Excluded Data within Customer Data promptly after discovery (without limiting FTP Today’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; and (ii) FTP Today has no liability for any failure to provide protections in the Excluded Data Laws or otherwise to protect Excluded Data. FTP Today is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data.
4.3. Consumer Requests. If FTP Today receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Data, FTP Today may respond in accordance with applicable law. Nothing in this Agreement precludes FTP Today from asserting rights or defenses it may have under applicable law related to such requests.
4.4. Additional Fees. Customer recognizes and agrees that FTP Today may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Customer requests to help it comply with Privacy/Security Laws.
4.6. Usage Data. “Usage Data” refers to information generated through monitoring or other observation of Customer’s and its Users’ use of the SaaS.. Customer recognizes and agrees that Usage Data is the property of FTP Today and FTP Today may use it in any way, including without limitation by aggregating it with similar data about FTP Today’s other customers, for analysis, and to improve and market the SaaS. Usage Data does not include any Customer Data that identifies or could reasonably be used to identify an individual person (including a User) or a household. Customer hereby assigns to FTP Today all its right, title, and interest in and to Usage Data.
4.7. Erasure. FTP Today may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting FTP Today’s other rights or remedies.
4.8. Required Disclosure. Notwithstanding the provisions above of this Article4, FTP Today may disclose Customer Data as required by applicable law or by proper legal or governmental authority. FTP Today shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.9. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, Customer assumes such risks. FTP Today offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.10. Data Accuracy. FTP Today has no responsibility or liability for the accuracy, integrity, legality, reliability, security, or propriety of data uploaded to the SaaS through Customer’s account, including without limitation Customer Data and any other data uploaded by Users or Guests. Customer is solely responsible for securing any rights from third parties necessary to use or transfer the Customer Data, including within files.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS, except Guests as specifically authorized by this Agreement; (b) provide SaaS passwords or other log-in information to any third party, except Guests as specifically authorized by this Agreement; (c) share non-public SaaS features or content with any third party, except Guests as specifically authorized by this Agreement; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, FTP Today may suspend Customer’s access to the SaaS without advanced notice, in addition to such other remedies as FTP Today may have. Neither this Agreement nor the AUP requires that FTP Today take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but FTP Today is free to take any such action it sees fit.
5.2. Access to SaaS. Customer recognizes and agrees that it, and not FTP Today, controls access to the SaaS by Guests and other Users. Customer shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by assigning passwords and establishing other authentication systems to protect its passwords and other log-in information. Customer further recognizes and agrees that it and not FTP Today is responsible for configuring and managing all optional SaaS features intended to reduce the risk of unauthorized access. Customer shall notify FTP Today immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop such breach.
5.3. Management of Files. Customer recognizes and agrees that FTP Today only provides the SaaS to Customer and is not responsible for managing Customer’s files or Customer’s use of the SaaS. For example, Customer is responsible for (a) configuring optional features available within the SaaS and (b) organizing, storing and deleting its files. In addition, Customer acknowledges and agrees that by transferring files through the SaaS, Customer and its Users are not disclosing content within those files to FTP Today, and that Customer and its Users, and not FTP Today, are responsible for monitoring and managing such content.
5.4. Compliance with Laws. In its use of the SaaS, Customer shall comply with all applicable laws, including without limitation Privacy/Security Laws.
5.5. Guests & Other Users; SaaS Access. Customer is responsible and liable for: (a) Guests’ and other Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the SaaS through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the SaaS. FTP Today retains all right, title, and interest in and to the SaaS, including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. However, the preceding sentence does not transfer to FTP Today ownership of any Customer trademark uploaded to the SaaS for Customer’s use. This Agreement does not grant Customer any intellectual property license or rights in or to the SaaS or any of its components. Customer recognizes that the SaaS and its components are protected by copyright and other laws.
6.2. Trademark Licenses. FTP Today hereby grants Customer a trademark license to reproduce, during the Term, FTP Today’s name and any logos made available to Customer in Customer marketing and advertising materials related to the SaaS, subject to the limitations below. Customer hereby grants FTP Today a trademark license to reproduce, during the Term, Customer’s name and any logos made available to FTP Today for co-branding purposes within the SaaS, on the SaaS login page, and in FTP Today marketing and advertising materials, subject to the limitations below. Each party receiving a trademark license (“Licensee”) may reproduce the other’s trademarks only if the Licensee complies with any instructions, guidelines or other policy for trademark usage, including without limitation any written amendment to such policy, provided by the licensing party (“Licensor”) in its sole discretion. All goodwill associated with a trademark inures solely to the Licensor, and Licensee shall take no action to damage the goodwill associated with the trademarks or with the Licensor.
6.3. Feedback. FTP Today has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Guests, or other Users give FTP Today, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict FTP Today’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of FTP Today’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items FTP Today discloses to Customer: (A) any document FTP Today marks “Confidential”; (B) any information FTP Today orally designates as “Confidential” at the time of disclosure, provided FTP Today confirms such designation in writing within ten business days; (C) the Documentation and proprietary business information (including, without limitation, SOC 2 or other information security reports and certificates, insurance certificates and policies, and financial information), whether or not marked or designated confidential; and (D) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (1) is in Customer’s possession at the time of disclosure; (2) is independently developed by Customer without use of or reference to Confidential Information; (3) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (4) is approved for release in writing by FTP Today.
7.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than to facilitate transfers of computer files between Customer and its Guests (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7.1; and (b) shall not disclose Confidential Information to any other third party without FTP Today’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify FTP Today of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give FTP Today prompt notice of any such legal or governmental demand and reasonably cooperate with FTP Today in any effort to seek a protective order or otherwise to contest such required disclosure, at FTP Today’s expense.
7.2. Termination & Return. The requirements of this Article 7 will survive termination of this Agreement for any reason. Upon termination, Customer shall return all copies of Confidential Information to FTP Today or certify, in writing, the destruction thereof.
7.3. Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to FTP Today; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that FTP Today prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. FTP Today will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that - (A) is made - (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual - (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From FTP Today. FTP Today represents and warrants that it is the owner of the SaaS and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this Agreement without the further consent of any third party. FTP Today’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by FTP Today. In case of breach of the warranty above in this Section 8.1, FTP Today, at its own expense and at its option, shall promptly: (a) secure for Customer the right to continue using the SaaS; (b) replace or modify the SaaS to make it non-infringing; or if such remedies are not commercially practical in FTP Today’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which Customer access to the SaaS ceases as a result of such breach of warranty. If FTP Today exercises its rights pursuant to Subsection 8.1(c) above, Customer shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and FTP Today’s entire liability for breach of the warranty above in this Section 8.1.
8.2. From Customer.
(a) Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
(b) Re Guests. Customer represents and warrants that, to the best of its knowledge, each Guest will be a corporation, the sole proprietorship of an individual 18 years or older, another entity authorized to do business pursuant to applicable law, or the agent or employee of such an entity.
8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 (From FTP Today) above, CUSTOMER ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) FTP TODAY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) FTP TODAY DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) FTP TODAY DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9.1. Indemnified Claims. Customer shall defend, indemnify, and hold harmless FTP Today and the FTP Today Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Users, including without limitation by their employees; (b) claims related to Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, computer files, images, logos, or other content uploaded to the SaaS or transferred via the SaaS through Customer’s account, including without limitation by Customer Data or Excluded Data; and (d) claims that use of the SaaS through Customer’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO FTP TODAY’S NEGLIGENCE. (“FTP Today Associates” are FTP Today’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any: (i) unauthorized disclosure of, access to, or use of Customer Data or Excluded Data; or (ii) violation of Privacy/Security Law through Customer’s account; in each case including, without limitation, through unauthorized use of Customer’s passwords or other credentials for access to the SaaS. Data Incidents include, without limitation, such events caused by Customer, by FTP Today, by Customer’s Users, by hackers, and by any other third party.)
9.2. Customer’s obligations set forth in this Article 9 include, without limitation: (a) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (b) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defense on time to avoid prejudicing the defense, FTP Today may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. FTP Today will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a FTP Today Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation.
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. FTP TODAY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO FTP TODAY DURING THE TWELVE MONTHS PRECEDING THE LAST EVENT GIVING RISE TO THE LIABILITY.
10.2. Excluded Damages. IN NO EVENT WILL FTP TODAY BE LIABLE: (a) FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT; OR (b) FOR ANY DAMAGES CAUSED BY AN ACT OR OMISSION OF FTP TODAY’S CLOUD HOSTING PARTNERS, INCLUDING WITHOUT LIMITATION RESULTING FROM A DATA INCIDENT (collectively, “Host-Related Damages”). FTP Today shall pass through to Customer any remedies available to FTP Today from its cloud hosting partner for Host-Related Damages that Customer suffers, to the extent that FTP Today has such authority.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY TO THE BENEFIT OF FTP TODAY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF FTP TODAY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that FTP Today has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 10, FTP Today’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, FTP Today’s liability limits and other rights set forth in this Article 10 apply likewise to FTP Today’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. TERM & TERMINATION.
11.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order. Thereafter, the Term will renew automatically for successive periods of the same duration as the most recent Order, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting FTP Today’s other rights and remedies, FTP Today may suspend or terminate a Guest’s or other User’s access to the SaaS at any time, without advanced notice, if FTP Today reasonably concludes such Guest or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects FTP Today to potential liability.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the SaaS and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no FTP Today employee or contractor will be an employee of Customer.
12.2. Notices. FTP Today may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to legal <at> ftptoday <dot> com, and such notices will be deemed received 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without FTP Today’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Nevada, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Clark Country, Nevada. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any conflict between this Agreement and any FTP Today policy posted online, including without limitation the AUP, the terms of this Agreement will govern.
12.9. Technology Export. Customer shall not: (a) permit any third party to access or use the SaaS in violation of any U.S. law or regulation; or (b) export any software provided by FTP Today or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the SaaS in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. No purchase order or other ordering document, and no document unilaterally issued by Customer will be incorporated into this Agreement or govern the subject-matter hereof, whether issued before or after execution of this Agreement.
12.11. Amendment. FTP Today may amend this Agreement or the AUP, SLA or support terms from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives FTP Today written notice of rejection of the amendment. In the event of such rejection, this Agreement or the applicable policy will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the SaaS following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement and the policies named above may not be amended in any other way except through a written agreement by authorized representatives of each party.