Downstream Impact, Inc. Terms of Service
Welcome, and thank you for your interest in Downstream Impact, Inc. (“Downstream”) and our website at www.downstreamimpact.com, along with the related websites, networks, applications, and other services provided by Downstream (collectively, the “Downstream Services”). These Terms of Service are a legally binding contract between you (“Subscriber”) and Downstream regarding your use of the Downstream Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
DOWNSTREAM SERVICE OVERVIEW
Downstream empowers brands to more efficiently and profitably manage their search marketing on Amazon and other ecommerce platforms that may be enabled by Downstream through enhanced data analytics and automation. Subscriber may select between different levels of service when purchasing a subscription to the Downstream Services. Subscriber is an “Enterprise Subscriber” if Subscriber purchases a subscription by an Order Form. Subscriber is a “Standard Subscriber” if Subscriber purchased a subscription by an online subscription process.
Subscriber must be at least 18 years old to use the Downstream Services. By agreeing to these Terms, Subscriber represents and warrants to Downstream that: (a) Subscriber is at least 18 years old; (b) Subscriber has not previously been suspended or removed from the Downstream Services; and (c) Subscriber’s registration and use of the Downstream Services is in compliance with any and all applicable laws and regulations. If Subscriber is an entity, organization, or company, the individual accepting these Terms on Subscriber’s behalf represents and warrants that they have authority to bind Subscriber to these Terms and Subscriber agrees to be bound by these Terms.
ACCOUNTS AND REGISTRATION
When registering for an account on the Downstream Services, Subscriber may be required to provide Downstream with certain information, such as Subscriber’s name, email address, company name, or other contact information. Subscriber agrees that the information provided to Downstream is accurate and that Subscriber will keep it accurate and up-to-date at all times. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s account and password, and Subscriber accepts responsibility for all activities that occur under Subscriber’s account.
USE OF THE DOWNSTREAM SERVICES
4.1 - Use of the Downstream Services. Downstream grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 13.2) right during the Subscription Term to use the Downstream Services solely in connection with Subscriber’s internal business operations.
4.2 - Use of the Documentation. Downstream grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 13.2) license, without right of sublicense, during the Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Downstream Services in accordance with these Terms. “Documentation” means Downstream-provided user documentation, in all forms, relating to the Downstream Services (e.g., user manuals, on-line help files).
4.3 - Technical Support Services. For so long as Subscriber is current with its payment of the fees due in connection with these Terms, Downstream will use reasonable efforts to provide Subscriber with technical support services relating to the Downstream Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
4.4 - Professional Services. If Subscriber has ordered or Downstream will otherwise be providing consulting or other professional services to Subscriber, the Downstream Professional Services Addendum is hereby incorporated by reference into these Terms.
4.5 - Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Downstream Services or Documentation; (b) use the Downstream Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Downstream Services; (d) use the Downstream Services for any benchmarking activity or in connection with the development of any competitive product; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Downstream Services (except to the extent that applicable law prevents the prohibition of such activities); (f) use or access the Downstream Services in a manner that materially impacts or burdens Downstream or Downstream’s servers and other computer systems, or that interferes with Downstream’s ability to make available any product or service to any third party; or (g) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Downstream Services without permission.
4.6 - Compliance with Laws. Subscriber will use the Downstream Services and Documentation in compliance with all applicable laws and regulations. Subscriber will not violate any right of a third party, including by infringing or misappropriating any third party intellectual property right.
4.7 - Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Downstream Services and Documentation and immediately notify Downstream at firstname.lastname@example.org of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Downstream Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Downstream to prevent or terminate unauthorized use of the Downstream Services or Documentation.
4.8 - Reservation of Rights. Downstream grants to Subscriber a limited right to use the Downstream Services and Documentation under these Terms. Subscriber will not have any rights to the Downstream Services or Documentation except as expressly granted in these Terms. Downstream reserves to itself all rights to the Downstream Services and Documentation not expressly granted to Subscriber in accordance with these Terms.
4.9 - Feedback. If Subscriber provides any feedback to Downstream concerning the functionality and performance of the Downstream Services (including identifying potential errors and improvements), Subscriber hereby grants to Downstream a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, and sublicenseable right and license to use the feedback in any manner without payment or restriction.
4.10 - Third Party Products. Any third party products that are provided by Downstream in connection with the Downstream Services are provided pursuant to the terms of the applicable third party agreement, and Downstream assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.
FEES AND PAYMENT
5.1 - Fees and Payment Terms – Enterprise Subscribers. This Section 5.1 will apply if Subscriber is an Enterprise Subscriber.
5.1.A - Fees and Payment. Subscriber will pay Downstream the fees and other amounts due for the orders Subscriber makes for the Downstream Services, including any fees specified in an Order Form or Statement of Work (as defined in the Professional Services Addendum), plus any applicable taxes (“Fees”). Subscriber will pay all amounts due within 30 days of the date of the applicable invoice, unless otherwise specified in the Order Form. Downstream may increase the Fees for any renewal Subscription Term by providing notice to Subscriber at least 30 days prior to the renewal. All Fees are nonrefundable.
5.1.B - Late Payments. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Downstream to collect any amount that is not paid when due. Amounts due from Subscriber under these Terms may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under these Terms are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
5.2 - Fees and Payment Terms – Standard Subscribers. This Section 5.2 will apply if Subscriber is a Standard Subscriber.
5.2.A - Fees. Downstream reserves the right to determine pricing for the Downstream Services (“Fees”). Downstream will make reasonable efforts to keep the Fee information published on the website up to date. Downstream encourages Subscriber to check the Downstream website periodically for current Fee information. Downstream may change the Fees for the Downstream Services or any feature of the Downstream Services, including additional fees or charges, if Downstream gives Subscriber advance notice of changes before they apply. All Fees are nonrefundable.
5.2.B - Authorization. Subscriber authorizes Downstream to charge all Fees for the orders that Subscriber makes and any level of service Subscriber selects as described in these Terms or published by Downstream, including all applicable taxes, to the payment method specified in Subscriber’s account. If Subscriber pays any Fees with a credit card, Downstream may seek pre-authorization of Subscriber’s credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Subscriber’s purchase.
5.2.C - Recurring Subscriptions. The Downstream Services may include automatically recurring payments for periodic Fees (“Recurring Subscription”). If Subscriber activates a Recurring Subscription, Subscriber authorizes Downstream to periodically charge, on a going-forward basis and until cancellation of either the Recurring Subscription or Subscriber’s account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when Subscriber purchases the Recurring Subscription. Subscriber’s account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until Subscriber cancels its subscription or Downstream terminates it. Subscriber must cancel its subscription before it renews (as specified in Section 6.4) in order to avoid billing of the next periodic subscription Fees to Subscriber’s account. Downstream will bill the periodic subscription Fees to the payment method Subscriber provides during registration (or to a different payment method if Subscriber changes its payment information).
5.2.D - Delinquent Accounts. Downstream may suspend or terminate access to the Downstream Services, including fee-based portions of the Downstream Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Downstream Services, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5.3 - Promotional Offers. Downstream, at its sole discretion, may make promotional offers with different features and different pricing to any of Downstream’s customers. These promotional offers, unless made to Subscriber, will not apply to Subscriber’s offer or these Terms.
5.4 - Taxes. Other than net income taxes imposed on Downstream, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Downstream after all such taxes are paid are equal to the amounts that Downstream would have been entitled to in accordance with these Terms as if the taxes did not exist.
5.5 - Trial Accounts. In its sole discretion, Downstream may grant Subscriber the right to access and use the Downstream Services as a trial user at no charge for a specified limited time period (“Trial Account”). At the expiration of the trial period, Subscriber’s access to the Downstream Services will be terminated unless Subscriber pays the applicable subscription fees. Only a single Trial Account will be granted for a given email address. Downstream has no duty to provide Trial Accounts and will have no liability to anyone for failing to offer a Trial Account or for terminating a Trial Account’s trial period, with or without notice. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT SECTION 10 OF THESE TERMS DOES NOT APPLY WITH RESPECT TO ANY TRIAL ACCOUNTS OR ACCESS OR USE OF THE DOWNSTREAM SERVICES VIA A TRIAL ACCOUNT OR DURING ANY TRIAL PERIOD.
TERM AND TERMINATION
6.1 - Term. These Terms are effective beginning when Subscriber accepts the Terms or first downloads, installs, accesses, or uses the Downstream Services and expire on the expiration or termination of the last Subscription Term.
6.2 - Subscription Term. “Subscription Term” means the term of Subscriber’s subscription to the Downstream Services, including any renewal terms.
6.2.A - Enterprise Subscribers. The Subscription Term for Enterprise Subscribers will be as set forth on the applicable Order Form and will automatically renew for additional 1 year terms unless either party provides written notice of non-renewal at least 30 days’ prior to the end of the then-current Subscription Term.
6.2.B - Standard Subscribers. The Subscription Term for Standard Subscribers will be as specified during the online subscription process and will automatically renew for additional terms of the same duration unless terminated in accordance with Section 6.4.
6.2.C - Trial Accounts. The Subscription Term of a Trial Account is as specified by Downstream at the time of creation of the Trial Account. Downstream may, in its sole discretion, terminate a Trial Account and these Terms with respect to a Trial Account at any time and for any and no reason, with or without notice.
6.3 - Termination – Enterprise Subscribers. This Section 6.3 will apply if Subscriber is an Enterprise Subscriber. Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 6.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Downstream may, without limitation to any of its other rights or remedies, suspend performance of the Downstream Services until it receives all amounts due.
6.4 - Termination – Standard Subscribers. This Section 6.4 will apply if Subscriber is a Standard Subscriber or a Trial Account. If Subscriber violates any provision of these Terms, Subscriber’s authorization to access the Downstream Services and these Terms automatically terminate. Downstream may, at its sole discretion, terminate these Terms or Subscriber’s subscription to the Downstream Services, or suspend or terminate Subscriber’s access to the Downstream Services, at any time and for any or no reason, with or without notice. Subscriber may terminate its subscription to the Downstream Services at any time, and Subscriber will continue to have access to the Downstream Services through the end of the current Subscription Term, at which time the Subscription Term will automatically expire. Subscriber may terminate its subscription by contacting customer service at email@example.com.
6.5 - Effect of Termination. Upon the expiration or termination of these Terms for any reason: (i) access to the Downstream Services will automatically terminate; (ii) Subscriber will pay to Downstream any fees or other amounts that have accrued prior to the effective date of the expiration or termination, (iii) any and all liabilities accrued prior to the effective date of the termination will survive, and (iv) the following provisions will survive the expiration or termination of these Terms: Sections 4.8, 4.9, 5, 6.5, 7, and 9 through 13.
7.1 - Ownership. Subscriber retains all right, title, and interest, including all intellectual property rights, in and to any data or information that Subscriber uploads or inputs into the Downstream Services or otherwise makes available to Downstream (“Subscriber Data”).
7.2 - License Grant. Subscriber hereby grants Downstream a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, and store the Subscriber Data: (a) during the Subscription Term, for the purpose of exercising Downstream’s rights and performing its obligations under these Terms; and (b) in perpetuity, in a form that does not identify Subscriber as the source thereof, for Downstream’s business purposes, including to develop and improve Downstream’s products and services.
7.3 - Representations and warranties. Subscriber represents and warrants that: (a) Subscriber has all rights necessary to grant Downstream the licenses set forth in Section 7.2 and to enable Downstream to exercise its rights under these Terms; (b) Subscriber’s collection and use of any Subscriber Data in connection with the Downstream Services complies with all applicable privacy and data protection laws, rules, and regulations (collectively, “Privacy Laws”); and (c) the Subscriber Data, and the use of the Subscriber Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause Downstream to violate any Privacy Laws or any other law or regulation.
7.4 - Information Security. Downstream will implement commercially reasonable organizational and technical measures that are designed to prevent unauthorized or unlawful access, use or disclosure of Subscriber Data.
MODIFICATION OF THESE TERMS
Downstream reserves the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies Subscriber’s rights or obligations, Downstream may require that Subscriber accepts the modified Terms in order to continue to use the Downstream Services. Material modifications are effective upon Subscriber’s acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
DOWNSTREAM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DOWNSTREAM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. DOWNSTREAM DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE DOWNSTREAM SERVICES. DOWNSTREAM DOES NOT WARRANT THAT THE DOWNSTREAM SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE DOWNSTREAM SERVICES WILL BE SECURE OR UNINTERRUPTED. DOWNSTREAM DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE DOWNSTREAM SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE DOWNSTREAM SERVICES WILL ALWAYS BE AVAILABLE. DOWNSTREAM EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE DOWNSTREAM SERVICES.
INTELLECTUAL PROPERTY INFRINGEMENT
10.1 - Defense of Infringement Claims. Downstream will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Downstream Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the Subscription Term if: (a) Subscriber gives Downstream prompt written notice of the Claim; (b) Subscriber grants Downstream full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Downstream may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Downstream Services). Subscriber will not defend or settle any Claim without Downstream’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Downstream will have sole control over the defense and settlement of the Claim.
10.2 - Indemnification of Infringement Claims. Downstream will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Downstream’s consent after Downstream has accepted defense of the Claim); and (c) all amounts that Downstream agrees to pay to any third party to settle any Claim under Section 10.1.
10.3 - Exclusions from Obligations. Downstream will have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Downstream Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Downstream Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Downstream Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Downstream Services in accordance with instructions provided by Downstream, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Downstream Services not made or authorized in writing by Downstream where such infringement or misappropriation would not have occurred absent such modification.
10.4 - Limited Remedy. This Section 10 states Downstream’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Downstream Services.
11.1 - Defense. Subscriber will defend Downstream from any actual or threatened third party Claim arising out of or based upon Subscriber’s use of the Downstream Services (except to the extent Downstream is required to indemnify Subscriber for such Claim under Section 10.1) or Subscriber's breach of any of the provisions of these Terms. Downstream will (a) give Subscriber prompt written notice of the Claim; (b) grant Subscriber full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Downstream will not defend or settle any Claim without Subscriber’s prior written consent. Downstream will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
11.2 - Indemnification. Subscriber will indemnify Downstream from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Downstream in any Claim under Section 11.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Downstream in connection with the defense of a Claim under Section 11.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 11.1.
LIMITATIONS OF LIABILITY
12.1 - Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, NO PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 - Cap on Liability. UNDER NO CIRCUMSTANCES WILL DOWNSTREAM’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT PAID BY SUBSCRIBER TO DOWNSTREAM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION) or (b) $100.
12.3 - Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
13.1 - Relationship. Downstream will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of these Terms.
13.2 - Assignability. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Downstream. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
13.3 - Subcontractors. Downstream may utilize a subcontractor or other third party to perform its duties under these Terms so long as Downstream remains responsible for all of its obligations under these Terms.
13.4 - Consent to Electronic Communications. By using the Downstream Services, Subscriber consents to receiving certain electronic communications from Downstream. Subscriber agrees that any notices, agreements, disclosures, or other communications that Downstream sends to Subscriber electronically will satisfy any legal communication requirements, including that those communications be in writing.
13.5 - Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.6 - Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms.
13.7 - Arbitration. Any controversy or claim arising out of or relating to these Terms, or any breach of these Terms, will be determined by binding arbitration administered by, and in accordance with the rules of, the American Arbitration Association. Any arbitration will be conducted by three arbitrators (with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators) in King County, Washington and will be conducted (and the award rendered) in English. The award rendered by the arbitrators will be final and binding on the parties, and the arbitral judgment may be entered in any court of competent jurisdiction. Nothing in this Section 13.7 prevents either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
13.8 - Waiver. The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
13.9 - Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect.
DOWNSTREAM PROFESSIONAL SERVICES ADDENDUM
This Professional Services Addendum (this “Addendum”) is an addendum to, and is hereby incorporated into the Downstream Terms of Service (the “Terms”). This Addendum sets forth the terms and conditions pursuant to which Downstream will provide consulting or other professional services to Subscriber pursuant to one or more Statements of Work (“Professional Services”). Capitalized Terms used but not defined in this Addendum have the meaning given to them in the Terms.
PROFESSIONAL SERVICES; STATEMENTS OF WORK; CHANGE ORDERS
1.1 - Professional Services. Subject to the terms and conditions of the Terms and this Addendum, Downstream will perform the Professional Services. Subscriber acknowledges that Downstream’s ability to provide the Professional Services may be affected if Subscriber does not provide reasonable assistance to Downstream.
1.2 - Statements of Work. The specific details of the Professional Services to be performed will be described in one or more written statements of work that are executed by both parties (each, a “Statement of Work”). Once executed by both parties, each Statement of Work will be a unique agreement that incorporates the Terms and this Addendum and stands alone with respect to all other Statements of Work.
1.3 - Change Orders. Unless otherwise specified in a Statement of Work, Subscriber may reasonably request in writing that revisions be made with respect to the Professional Services or deliverables set forth in that Statement of Work (“Change Order”). If a Change Order recites revisions that materially increase the scope of the Professional Services or the effort required to deliver deliverables under the applicable Statement of Work, then within 10 business days after Downstream’s receipt of the Change Order, Downstream will deliver to Subscriber a written, revised Statement of Work reflecting Downstream’s reasonable determination of the revised Professional Services, deliverables, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions. If Subscriber approves the revised Statement of Work, then the parties will execute it, and upon execution, the revised Statement of Work will supersede the then-existing Statement of Work. If Subscriber does not approve the revised Statement of Work within 10 business days after its receipt by Subscriber, the then-existing Statement of Work will remain in full force and effect, and Downstream will have no further obligation with respect to the applicable Change Order.
1.4 - Project Management. Each party will designate a single point of contact within its organization to manage the Professional Services (“Project Leader”). The Project Leaders will meet as necessary to manage the Professional Services. Disputes will be escalated to more senior executives, if the Project Leaders are unable to resolve a problem.
1.5 - Performance Standard. Downstream will perform the Professional Services in accordance with the applicable Statement of Work, including any specifications in the Statement of Work. Downstream will use reasonable efforts to complete the Professional Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the applicable Statement of Work.
2.1 - Definitions.
2.1.A - "Pre-Owned IP" means any and all Technology owned by Downstream as of the effective date of the applicable Statement of Work or otherwise conceived, made, or discovered by Downstream outside of providing the Professional Services, and includes any Technology not specific to Subscriber’s business (such as frameworks, tools, methodologies, and plug-ins of general applicability)
2.1.B - “Subscriber-Owned Deliverables” means those deliverables specifically listed as being owned by Subscriber in a Statement of Work, but excluding any Pre-Owned IP contained in or delivered with the Subscriber-Owned Deliverables.
2.1.C - “Technology” means works of authorship, designs, inventions, improvements, developments, discoveries, trade secrets, and other technology.
2.2 - Ownership. Except for any Subscriber-Owned Deliverables and Subscriber Materials, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Downstream, solely or in collaboration with others, in the course of performing the Professional Services; or (b) that form all or part of a deliverable provided as part of the Professional Services, whether developed as part of the Professional Services or separately will be the sole property of Downstream. Upon and subject to final payment by Subscriber of all amounts owing to Downstream under the applicable Statement of Work, Downstream hereby assigns to Subscriber all right, title, and interest of Downstream in or to the Subscriber-Owned Deliverables.
2.3 - Pre-Owned IP. If in the course of performing the Professional Services, Downstream incorporates into any Subscriber-Owned Deliverable any Pre-Owned IP, Downstream will grant and hereby grants to Subscriber a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit such Pre-Owned IP solely as part of or in connection with the Subscriber-Owned Deliverable.
3.1 - Term. Each Statement of Work will commence on the specified effective date and will continue for the term specified in the Statement of Work. Any Statement of Work in effect upon the expiration or termination of the Terms will automatically terminate.
3.2 - Termination for Material Breach. Either party may terminate a Statement of Work if the other party does not cure its material breach of the Terms or the Statement of Work within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 3.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
3.3 - Effect of Termination. Upon the expiration or termination of a Statement of Work for any reason: (i) Downstream will have no obligation to perform any Professional Services under the terminated Statement of Work after the effective date of the expiration or termination; (ii) Subscriber will pay to Downstream any Fees and other amounts payable for the Professional Services performed under the Statement of Work through the effective date of the expiration or termination; and (iii) the parties’ respective rights and obligations under the following sections with respect to any Professional Services covered by the terminated Statement of Work will survive: (i) Sections 2, 3.3, and 4 of this Addendum; and (ii) the Sections that survive termination of the Terms as specified in Section 6.5 of the Terms.
DOWNSTREAM DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY DELIVERABLES. DOWNSTREAM DOES NOT WARRANT THAT ANY DELIVERABLES ARE ERROR-FREE OR THAT OPERATION OF ANY DELIVERABLES WILL BE SECURE OR UNINTERRUPTED. DOWNSTREAM EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE DELIVERABLES.