If an 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 terms “Customer” shall refer to such entity and its affiliates.
This Agreement was last updated on Nov 1, 2023.
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means electronic data and information submitted, transferred, or uploaded by or for the Customer to the Subscription Services and processed by Tiga on Customer’s behalf (including information the Subscription Services may obtain from Third Party Applications).
“Documentation” means the applicable Tiga materials including user guides and other information relating to the Subscription Services, as may be updated from time to time
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
“Order Form” means an ordering document specifying the Subscription Services and/or Professional Services to be provided and entered into by the Customer or its Affiliate and Tiga, including any addenda and supplements thereto, including SOWs. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Professional Services” means onboarding, implementation, training, configuration, consulting, or other professional services ordered by Customer and to the extent described in a SOW. For the avoidance of doubt, Professional Services are not tied to the subscription term of Subscription Services and also exclude standard maintenance and support included with the Subscription Services.
“Services” means the Subscription Services and Professional Services.
“SOW” means the statement of work further describing the Professional Services to be provided to Customer.
“Subscription Services” means the Tiga web services that are ordered by Customer and made available online by Tiga as specified in an applicable Order Form. Subscription Services include any Updates made available during the term.
“Third Party Applications” means products, services, or information that interoperate with the Services and are provided by third parties and not by Tiga.
“Updates” means modifications, updates, and changes which may be made by Tiga to the Subscription Service which Tiga makes generally available to its customers at no additional fee. Updates exclude new features, functions, and capabilities which are offered for an additional fee and must be specified in an Order Form or SOW.
“User” means an individual who is authorized by Customer to use a Service on Customer’s or Customer Affiliate’s behalf to whom Customer (or Tiga at Customer’s request) have supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors, and agents.
2. Tiga RESPONSIBILITIES
2.1. Provision of Subscription Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Tiga will (a) make the Subscription Services available to Customer in accordance with the Documentation, (b) provide Tiga standard support, as set forth in the Documentation, and (c) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for (i) any planned downtimes, or (ii) any unavailability caused by circumstances beyond Tiga’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Tiga employees), failure or delay of providers of Internet service or Third Party Applications, or denial of service attack.
2.2. Protection of Customer Data. Tiga will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data located on Tiga servers. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, and disclosure of Customer Data by or to third parties lacking a valid username and password and by Tiga personnel, except for actions by Tiga personnel (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, (c) as provided in Section 6.4, or (d) as Customer expressly permits in writing. A summary of these safeguards is currently available at https://tiga.ai/security.
2.3. Tiga Personnel. Tiga will be responsible for the performance of Tiga personnel (including Tiga employees and contractors) and their compliance with Tiga obligations under this Agreement.
2.4. Professional Services. Professional Services, if applicable, shall be set forth in an Order Form, with a SOW attached. Tiga agree to perform the Professional Services in a timely and professional manner consistent with industry standards and in accordance with the specifications of the applicable SOW. In the event of Tiga’s failure to comply with the obligations in this section, as Customer’s sole and exclusive remedy, Tiga shall correct or re-perform the noncomplying Professional Service. Each SOW shall be deemed to be part of the Agreement upon full execution of the same.
3. USE OF SUBSCRIPTION SERVICES
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Subscription Services are purchased as subscriptions, (b) additional Subscription Services may be added during a subscription term as agreed between the parties and (c) any added Subscription Services will terminate on the same date as the underlying Subscription Services.
3.2. Usage Limits. Subscription Services are subject to usage limits, including, for example, the quantities specified in Order Forms and technical and functional requirements set forth within the Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Subscription Services. If Customer exceeds a contractual usage limit, it will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Tiga’s request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
3.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquires Customer Data and provides it to Tiga, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Tiga promptly of any such unauthorized access or use, (d) use the Services only in accordance with applicable laws and government regulations, and (e) comply with terms of service of Third Party Applications with which Customer uses the Services.
3.4. Usage Restrictions. Customer will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) provide access to the Services to a Tiga direct competitor, (d) use a Service to store or transmit data that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (e) use a Service to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to or perform security testing on any Service or its related systems or networks, (h) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) copy a Service or any part, feature, function, or user interface thereof, (j) frame or mirror any part of any Service, other than framing on Customer intranets or otherwise for Customer’s own internal business purposes, (k) access any Service or monitor the Services availability, performance or functionality in order to build a competitive product or service, or for any other benchmarking or competitive purposes, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
3.5 Suspension. Tiga retains the right to suspend the Services, Customer accounts, and User accounts in the event of any security threat or Customer’s breach or threatened breach of any of the restrictions in Section 3. Tiga will terminate any such suspension as soon as Tiga determines that the risk underlying the suspension has been mitigated to Tiga’s satisfaction.
3.6 Use of the Services. Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer and Users’ usernames, passwords, and accounts with Tiga, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer local (intranet) identity infrastructure or on Customer local computers. Tiga is not responsible for any harm caused by Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Customer local identity management infrastructure or Customer local computers. Customer is responsible for all activities that occur under Customer and Users’ usernames, passwords or accounts or as a result of Customer or Users’ access to the Services.
3.7. Additional Limitations on Use. Customer acknowledges and agrees that use of the Services to transmit, store, or otherwise process “Highly Sensitive Information” is unnecessary for use of the Services and Customer shall be solely responsible for any such use of the Services by Customer or Users, including ensuring that transmittal, processing, or storage of such information is in compliance with applicable laws. “Highly Sensitive Information” is defined as (a) numbers used for identification, such as social security numbers, passport numbers, or driver’s license numbers; (b) personal health or medical information; (c) banking or payment card information; (d) sensitive government or military information, including information subject to U.S. FedRAMP requirements; (e) information collected from or regarding minors or children; (f) criminal history; (g) other personal information which qualifies (pursuant to data privacy laws and regulations) as a special category of personal data, sensitive personal information, or similarly defined terms, such as a person’s religious or philosophical beliefs, immigration or citizenship status, genetic or biometric data, and sexual life or sexual orientation; or (h) data which by law must be localized in a jurisdiction outside of the United States or requires additional requirements beyond those agreed upon herein to permit transfer to the United States. Notwithstanding anything to the contrary in this Agreement, Tiga shall not be liable for Tiga’s noncompliance with a law or regulation where such noncompliance is attributable to Customer’s use or provision of Highly Sensitive Information in connection with the Services.
3.8 Use by Customer Affiliates. Customer Affiliates may access and use the Services for their own internal use, to the extent that Customer has authorized its Affiliate to do so and Customer has purchased the appropriate level of access to the Services. All obligations of the Customer shall apply equally to each Customer Affiliate that uses the Services, provided that the Customer shall be responsible for ensuring the Customer Affiliate complies with this Agreement and all acts or omissions of Customer Affiliates.
4. THIRD PARTY APPLICATIONS
4.1. Third Party Applications. Customer may choose to obtain Third Party Applications to use with features within the Services. To use such features, Customer may be required to obtain access to Third Party Applications from their providers. Any acquisition by Customer of Third Party Applications, any exchange of data between Customer and any provider of a Third Party Application, and any governing terms are solely between Customer and the applicable provider. No procurement of Third Party Applications is required to use the Services.
Tiga assumes no responsibility for, and specifically disclaims any liability, warranty, and obligation with respect to Third Party Applications, whether or not they are recommended or approved by Tiga, listed within the Tiga App directory, or otherwise noted.
If Customer elects to integrate Third Party Applications with the Services, Customer agrees that the Services may access its Third Party Applications account to enable interoperation between (including, if applicable, the exchange and transmission of data) the Services and the applicable Third Party Applications. Furthermore, Customer may be required to adhere to additional requirements as set forth in the Documentation to enable integrations with certain Third Party Applications. If the provider of a Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, Tiga may cease providing those Service features without entitling the Customer to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR SERVICES
5.1. Fees. Customer will pay all fees specified in each Order Form and/or SOW, as applicable (“Fees”). Except as otherwise specified herein or in an Order Form and/or SOW, all Fees are payable in advance, non-cancelable and non-refundable and based on the Services purchased.
5.2. Invoicing and Payment. Customer will provide Tiga with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Tiga. If Customer provides credit card information to Tiga, Customer authorizes Tiga to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term. Such charges shall be either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Tiga will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Tiga and notifying it of any changes to such information.
5.3. Interest, Suspension of Service and Acceleration. If any Fees are 30 or more days overdue, Tiga may, without limiting Tiga’s other rights and remedies (i) charge the Customer interest at the rate of the lesser of 1.5% per month, or the maximum rate permitted by law, (ii), accelerate Customer unpaid Fees so that all such obligations become immediately due and payable, and (iii) suspend the Services until such amounts are paid in full. Tiga will give Customer at least 10 business days’ prior notice that Customer account is overdue, before suspending Services to Customer.
5.4. Payment Disputes. Tiga will not exercise its rights under Section 5.3 (Interest, Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.5. Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Tiga has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.5, Tiga will invoice Customer and Customer will pay that amount unless Customer provides Tiga with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Tiga is solely responsible for taxes assessable against Tiga based on Tiga’s income, property, and employees.
5.6. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Tiga regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to and conditional on Customer’s payment of applicable Fees as well as Customer’s compliance with the terms of this Agreement and any applicable Order Form(s), Tiga grants Customer and Users a limited, non-exclusive, non-transferable (except in compliance with Section 13.4) right to access and use the Services set forth within such Order Form(s) and Tiga Documentation during the subscription term for Customer’s reasonable internal business purposes. No rights are granted to Customer hereunder other than the right to receive and use the Services as expressly set forth herein. Tiga and its licensors reserve all of Tiga’s or its licensors’ right, title, and interest in and to the Services, including all of Tiga’s or its licensors’ related intellectual property rights.
6.2. License by Customer to Host Customer Data and Applications. Customer grants Tiga and its Affiliates a worldwide, limited-term right to host, copy, transmit, and display or otherwise use Customer Data (1) as necessary for Tiga to provide the Services, or otherwise exercise Tiga’s rights or obligations pursuant to this Agreement; (2) as necessary to provide support, address service issues/requests, or otherwise enhance Customer use of the Services; (3) as required by law, regulation, or in accordance governmental request with legal process; (4) as requested by Customer; and (5) to investigate or address security or integrity issues related to the Services. Except as expressly permitted by this Agreement, Tiga acquires no right, title, or interest from Customer or Customer licensors under this Agreement in or to Customer Data or any Third Party Application.
6.3. License by Customer to Use Feedback. Customer grants to Tiga and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of the Services.
6.4. Use of Data. Tiga shall have the right to (and to retain third parties to) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, provided that Customer Data that is also personal information will only be used in connection with the permitted purposes in Section 6.2, unless such personal information is aggregated or otherwise de-identified. Tiga may (during and after the term hereof) (i) use such information and data to improve and enhance the Services and for other development, benchmarking, diagnostic, and corrective purposes in connection with the Services and Tiga’s other offerings, and (ii) use third party service providers, contractors, and subcontractors (“Tiga Providers”) to assist in providing, supporting, and improving the Service. Tiga may share all such information and data with Tiga Providers, who may store and use it solely to provide, support, and improve the Service. Tiga shall be responsible for the compliance of Tiga Providers with the provisions of this Agreement.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; Tiga Confidential Information includes the Services and Services pricing; and Confidential Information of each Party includes the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or tortious act and without breach of any obligation owed to the Disclosing Party or any other party, or (iv) was independently developed by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ directors, officers, employees, and contractors who need that access for purposes of performing under this Agreement and who have signed confidentiality agreements with the Receiving Party. Neither Party will disclose Confidential Information (including but not limited to the terms of this Agreement or any Order Form) to any third party without the written consent of the Disclosing Party other than to its Affiliates solely as needed to perform its obligations under this Agreement, legal counsel, auditors, professional advisors, and accountants who have agreed to confidentiality obligations protective of the Disclosing Party’s Confidential Information in writing or who have a statutory/regulatory obligation of confidentiality. The Receiving Party will remain responsible for such Affiliate’s, legal counsel’s, auditor’s, professional advisor’s, or accountant’s noncompliance with this Section 7.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or administrative proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Tiga Warranties. Tiga warrants that the Subscription Services, when used by Customer as expressly permitted hereunder and in accordance with the Documentation, will operate in substantial conformity with the then current version of the Documentation provided by Tiga. Should Customer determine that the Subscription Services have not met the foregoing warranty, Customer shall give Tiga notice of the deficiency including details sufficient to allow Tiga to replicate the deficiency. For any breach of such warranty, as Customer sole remedy, Tiga will correct the nonconformity within a reasonable period of time.
8.3. Service Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE AND EXCLUSIVE WARRANTIES AND WARRANTY REMEDIES ARE AS SET OUT IN THIS SECTION AND, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES INCLUDING ALL FUNCTIONS THEREOF, ARE PROVIDED ON AN ‘AS IS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, Tiga DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.4 Additional Disclaimers. TIGA IS NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND CUSTOMER WILL MAINTAIN BACKUP COPIES OF CUSTOMER DATA ON CUSTOMER’S OWN SYSTEMS. TIGA IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS. TIGA HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY APPLICATIONS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Tiga. Tiga will defend Customer, Customer Affiliates, and their officers, directors, employees, agents, and contractors (“Customer Indemnified Parties”) from and against any claims, demands, suits, or proceedings brought by a third party (“Claims”) alleging that Customer’s authorized use of Subscription Services or Professional Services infringes such third party’s valid patent, copyright, or trademark. Tiga will indemnify and hold Customer Indemnified Parties harmless from and against any liability, damages, and costs (including, without limitation, reasonable attorney’s fees) incurred in connection with such Claims. Notwithstanding the foregoing, if Tiga reasonably believe that Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation, or misappropriation of any third party intellectual property rights then Tiga may, at Tiga expense and in Tiga sole discretion: use commercially reasonable efforts to (i) procure for Customer the right to continue using the Services; (ii) replace the same with other non-infringing software or services of substantially equivalent functions; or (iii) modify the applicable software or services so that there is no longer any infringement, violation, or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Tiga opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Tiga may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination. The foregoing indemnification obligation will not apply: (1) if the Services are modified by any party other than Tiga, to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other products, applications, or processes not provided by Tiga, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Services; (4) to Claims arising out of any Third Party Applications; or (5) to Claims arising out of Customer Data. THIS SECTION 9.1 SETS FORTH TIGA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9.2. Indemnification by Customer. Customer will defend Tiga and its Affiliates, and their officers, directors, employees, agents, and contractors (“Tiga Indemnified Parties”), from and against any Claims arising from or relating to Customer Data or misuse of the Services and will indemnify and hold Tiga Indemnified Party’s harmless from and against any liability, damages, costs, and expenses (including but not limited to reasonable attorney fees) incurred in connection with such Claims.
9.3 Procedures. Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable Claim; (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the Claim, provided that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party of all liability and receives indemnified Party written approval (which will not be unreasonably withheld) of any conditions imposed by the settlement, if applicable; and (iii) the indemnified Party will cooperate fully to the extent necessary and as requested in the Claim investigation, defense, and trial (including any appeal arising therefrom), and execute all documents necessary for the defense of such Claim.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. However, the foregoing limitations shall not apply to (a) liability for personal injury; (b) liability arising out of gross negligence or willful misconduct; or (c) Customer payment obligations under this Agreement. No action against Tiga arising out of this Agreement may be brought more than one (1) year after the cause of action has arisen.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or until this Agreement is terminated pursuant to Section 11.3.
11.2. Term of Subscriptions and Renewals. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter) (“Renewal Term”), unless either Party gives the other notice of non-renewal 30 days before the end of the relevant subscription term. Subject to (i) the number of Users subscribed during any Renewal Term being not less than the Users subscribed at the end of the prior subscription term and (ii) the pricing in the prior subscription term not being designated in the relevant Order Form as promotional or one time (including any Services offered at no charge, which shall be all deemed promotional or one time in nature), then: a. where the prior subscription term is a multi-year subscription term, the pricing on a per User or other per unit basis, if applicable, during any Renewal Term will not increase by more than 10%, of the sum that is equivalent to a price increase of 10% being applied annually and on a compounded basis during the whole period of the prior subscription term. b. where the prior subscription term is not a multi-year subscription term, the pricing on a per User or other per unit basis, if applicable, during any Renewal Term will not be increased by more than 7% of the pricing for the applicable Service in the prior subscription term.
11.3. Termination. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 (Termination), Tiga will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Tiga in accordance with Section 11.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer obligation to pay any fees payable to Tiga for the period prior to the effective date of termination.
11.5. Customer authorizes Tiga to retain Customer Data for 30 days after any termination or expiration of this Agreement. Notwithstanding the foregoing, following any such termination or expiration, Tiga has no obligation to maintain Customer Data. Upon request, Tiga will delete or destroy all copies of Customer Data in Tiga systems or otherwise in Tiga’s possession or control, unless legally prohibited.
11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Service Disclaimers,” “Additional Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions,” and Section 11.5 will survive any termination or expiration if this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer. Notices to Tiga should be addressed to Tiga, Inc., 12153 Richland Lane, Herndon, VA 20171; Attention: Legal Department.
12.2. Governing Law and Jurisdiction. Each Party agrees to the governing law of the State of Virginia without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Richmond, Virginia.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Tiga 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 Tiga.
13.3. Entire Agreement and Order of Precedence. This Agreement incorporates any exhibits, appendices and other documents referenced in it. This Agreement, together with each Order Form, is the entire agreement between the parties regarding the use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. We may modify this Agreement by updating the Agreement as it appears on Our website. Additionally, the parties may modify or amend this Agreement in a written instrument signed by both parties. Changes or amendments to Order Form(s) may be accomplished only in a written instrument signed by both parties. The parties agree that any term or condition stated in Customer purchase order, supplier information/setup or similarly titled forms, invoice management platforms, or in any other of Customer order documentation (excluding Order Forms) is void, including where such order, form, or other documentation is signed by Tiga. In the event of any conflict between any provision of this Agreement and an SOW or Order Form, the terms of the SOW or Order Form shall prevail with respect to the matters covered by the applicable SOW and/or Order.
13.4. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), following written notice to but without the other Party’s consent (i) to its Affiliate, (ii) in connection with a merger, acquisition, corporate reorganization, or (iii) in connection with the sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5 Marketing. Customer agrees (a) that Tiga may identify the Customer as a Tiga Customer or User across Tiga’s marketing materials, promotional presentations, customer lists, website and other written and electronic materials (name and logo), and (b) upon reasonable request, to provide input towards and/or participate in Tiga’s marketing and promotional activities. Where any Customer trademark or logo is used, such usage shall at all times be subject to any trademark or logo usage guidelines that Customer has provided to Tiga.
13.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.7. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.8. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
13.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law, and the remaining provisions of this Agreement will remain in effect.
This Master Subscription Agreement (the “Agreement”) sets forth the terms and conditions that govern access to and use of the Services (as defined below), and is between Tiga Labs, Inc. (“Tiga”), a Delaware corporation, and the company or other legal entity accepting this Agreement, and affiliates of that company or entity (“Customer”). This Agreement is effective, and Customer agrees to its terms and conditions, as of the date that Customer accepts the Agreement by (1) clicking a box indicating Customer acceptance; (2) executing an order form that references this Agreement; or (3) using the Services (the “Effective Date”).