CONFIG TERMS AND CONDITIONS

These Config Terms and Conditions (this “Agreement”) are by and between Config Inc. (“Config”) and the person or entity on behalf of which you are accepting this Agreement (“Customer”) and governs Customer’s access to and use of the Subscription Services (defined below) and Professional Services (defined below), if any, that Customer receives from Config. This Agreement includes and incorporates any online registration form entered into in connection with this Agreement and/or any other Order Forms (defined below) that incorporate this Agreement by reference. Config and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.  This Agreement is effective upon the date of Customer’s completion of the applicable online registration form or execution of a separate Order Form, as applicable (the “Effective Date”).  

If you have registered electronically for the Subscription Services, then please read this Agreement carefully, as it governs the use of the Subscription Services by the entity of which you are acting on behalf in registering for the Subscription Services.

BY ACCEPTING THESE TERMS (INCLUDING BY ACCESSING THE SUBSCRIPTION SERVICES), YOU, AS THE INDIVIDUAL REGISTERING FOR THE SUBSCRIPTION SERVICES ON BEHALF OF CUSTOMER: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND HAVE LEGAL AUTHORITY TO BIND CUSTOMER; AND (C) ACCEPT THIS AGREEMENT ON BEHALF OF CUSTOMER AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, NEITHER YOU NOR ANY INDIVIDUAL ON BEHALF OF CUSTOMER MAY ACCESS OR USE THE SUBSCRIPTION SERVICES.

1. DEFINITIONS.  

“Config IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, and Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.




“Customer Materials” means all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by Customer or its Authorized Users through the Subscription Services or to Config in connection with Customer’s use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other Config IP.




“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Config to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.




“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form.

“Order Form” means a(n) (i) online registration form completed and accepted by Customer; (ii) mutually executed order form or other mutually agreed upon ordering document; (iii) purchase order issued by Customer and accepted by Config in writing; or (iv) quote issued by Config and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services and/or Professional Services to be provided by Config.

“Professional Services” means the implementation and/or other professional services, if any, described in the applicable Order Form or agreed upon statement of work.




“Subscription Services” means Config’s cloud-based collaboration and design tools (including any updates, patches, bug fixes and upgrades provided by Config), as more particularly described or identified in the applicable Order Form. 




“Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation.




2. SUBSCRIPTION SERVICES.
1. Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Config hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 12(d)) right to Use the Subscription Services in accordance with, and subject to, the Licensed Volume during the applicable Term. Subject to the limited rights expressly granted hereunder, Config reserves and, as between the Parties will solely own, the Config IP and all rights, title and interest in and to the Config IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
2. Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Subscription Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Subscription Services to any other person or entity, or otherwise allow any person or entity to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Config for use expressly for such purposes; or (vi) use the Subscription Services, Documentation or any other Config Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services. 
3. Authorized Users. Customer will not allow any person or entity other than its employees or contractors that it authorizes to Use the Subscription Services on its behalf or third-party users that it authorizes to Use certain features on behalf of Customer’s clients or customers (“Authorized Users”). Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 2(b). Config may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Config reasonably determines that such Authorized User violated this Agreement. Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Config if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created.
4. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Config reserves and, as between the Parties will solely own, the Config IP and all rights, title and interest in and to the Config IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
5. Free Offerings and Previews. Notwithstanding anything to the contrary, with respect to (i) any Subscription Services that Customer is using free of charge, or (ii) any features or services within the Subscription Services that are labelled or communicated to Customer as “preview,” “beta,” “demo,” “pre-release” or similar (“Previews”), in each case, Customer acknowledges and agrees that (a) such Subscription Services and Previews are provided by Config solely on an “AS IS” basis, without warranties, indemnities, support or commitments of any kind; and (b) Config may terminate or suspend such Subscription Services and/or Previews at any time. 
3. FEES. In consideration for Config providing the Subscription Services and, if applicable, the Professional Services, Customer will pay Config the non-refundable fees set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth therein and without offset or deduction. Except as otherwise provided in the relevant Order Form or agreed by the Parties, Config will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.  If Customer has signed up for automatic billing, Config will charge Customer’s selected payment method (e.g., credit card, debit card, ACH transfer) for any Fees on the applicable payment date, including any applicable taxes. If Config cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Config will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Config may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
4. CUSTOMER MATERIALS AND DATA. Config acknowledges that, as between Customer and Config, Customer owns and retains all right, title and interest in and to all Customer Materials. Config may use, display and modify the Customer Materials solely to provide and improve the Subscription Services and Professional Services during the Term (as defined below).  In addition, Config may develop or derive data or insights that are in aggregated and deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services (collectively, “Aggregate Data”).
5. REPRESENTATIONS AND WARRANTIES. 
1. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; and (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents. 
2. Customer represents and warrants that Config’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third-party.
6. TERM. The initial term of this Agreement begins on the Effective Date and expires at the end of the term specified in the relevant Order Form (the “Initial Term”). Except as otherwise set forth in the Order Form or where the Initial Term is not specified on the Order Form, following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.  
7. TERMINATION. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Config may further terminate this Agreement immediately upon written notice to Customer in the event that Customer breaches Sections 2(b) or 9, or infringes or otherwise violates Config’s intellectual property rights in and to the Subscription Services.  If the Order Form does not specify any Term, or if Customer is using the Subscription Services free of charge, then Config may terminate or suspend Customer’s access to the Subscription Services and/or terminate this Agreement at any time.
8. EFFECT OF TERMINATION.
1. Upon expiration or termination of this Agreement or the applicable Order Form: (i) each Party will make no further use of any Confidential Information belonging to the other Party, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially, (ii) Customer’s and its Authorized Users’ right to Use the Subscription Services pursuant to such Order Form will immediately terminate; and (iii) all Fees owed by Customer to Config pursuant to such Order Form will be immediately due; provided that if Customer terminates this Agreement for cause in accordance with Section 7, Config will refund to Customer a pro rata amount of any unused pre-paid Fees for the remainder of the applicable Term. 
2. The rights and obligations of Config and Customer contained in Sections 1, 2(b), 2(d), 3, 4, 8, 9, 10, 11 and 12 will survive any expiration or termination of this Agreement and Order Forms.
9. CONFIDENTIALITY.  
1. Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is marked as “confidential” or “proprietary” or should otherwise reasonably be considered to be confidential or proprietary given the nature of the information and/or the circumstances of disclosure. For clarity, Config IP will be deemed Confidential Information of Config.  The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. 
2. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure. 
10. DISCLAIMER; LIMITATION OF LIABILITY.
1. Disclaimer. THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, AND OTHER CONFIG IP ARE PROVIDED ON AN “AS IS” BASIS, AND CONFIG MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE CONFIG IP, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONFIG HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CONFIG HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. 
2. Exclusion of Damages. EXCEPT FOR (I) BREACH OF CONFIDENTIALITY, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS AND (IV) INFRINGEMENT OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CONFIG IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
3. Total Liability.  IN NO EVENT WILL CONFIG’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE CONFIG IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CONFIG IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (OR IF NO FEES WERE PAID IN SUCH PERIOD, $1000), REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT CONFIG WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
4. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CONFIG AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
11. INDEMNIFICATION.
1. Indemnification by Config. Subject to Section 11(b), Config will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Config (including reasonable attorneys’ fees) resulting from such Claim. 
2. Exclusions. Config’s obligations under Section 11(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Config; (iv) modifications to the Subscription Services by anyone other than Config; (v) combinations of the Subscription Services with software, data or materials not provided by Config; or (vi) Customer’s continued use of a prior version of the Subscription Services that has been superseded by a non-infringing version subsequently made available by Config.
3. IP Remedy. If Config reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s intellectual property rights, Config may, at its sole option and expense, use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use.  If Config determines that neither alternative is commercially practicable, Config may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  The rights and remedies set forth in this Section 11 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Subscription Services.
4. Indemnification by Customer. Customer will defend, indemnify and hold harmless Config and its affiliates, officers, employees, directors and licensors from and against any damages, losses, costs and liabilities (including court costs and reasonable attorneys’ fees) arising from a Claim against Config that: (i) alleges that the Customer Materials or its use by Config in accordance with this Agreement infringes, misappropriates or violates a third-party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Subscription Services or Documentation in violation of this Agreement; (iii) is based on the manufacture, sale, distribution or marketing of any Customer’s products or services; or (iv) is based on a breach of Section 2(b) by Customer. 
5. Procedure. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
12. MISCELLANEOUS.
1. Export Regulation. Customer will fully comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
2. Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
3. Equitable Relief.  Customer agrees that a breach or threatened breach by Customer of any of its obligations under Section 2(c) or Section 9 would cause Config irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, Config will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
4. General.  Config may use Customer’s name, trademark, and associated logos in its marketing and promotional efforts, including by publicly naming Customer as a customer of Config.  Config may freely assign this Agreement. Customer may not assign or transfer this Agreement, by operation of law or otherwise, without Config’s prior written consent, and any attempt by you to do so, without such consent, will be void.   Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.  This Agreement, including the applicable Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.  Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.  There will be no express or implied third-party beneficiaries capable of enforcing the terms of this Agreement other than the Parties whom execute this Agreement.   Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.  This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.   Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the San Francisco, California and the Parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed to the applicable address in the Order Form.