Terms and conditions

TERMS OF SUBSCRIPTION SERVICE – The Launchpad MQL Subscription

Effective: June 1st, 2022

These Terms of Subscription Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Service (as defined below) (“Client”) and The Launchpad entity specified on the Quote or other order form.

The “Effective Date” of this Agreement is the date that the “client” signs up to participate in the subscription service and will run for 12 months from that date.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement. If you receive free access or a trial or evaluation subscription to the Service, you are deemed a “Client” under this Agreement and are subject to its terms, including the restrictions and limitations in Section 4.4 (Trial Subscriptions) below. You may not use or access the Service if you are a direct competitor of The Launchpad or if you are accessing or using the Service for the benefit of a direct competitor of The Launchpad.

This Agreement permits Client to purchase a subscription to The Launchpad MQL Service pursuant to the terms and conditions under which those Services will be delivered. This Agreement shall govern Client’s initial purchase as well as any future purchases made by Client that reference this Agreement. This Agreement includes any and all Exhibits, referenced policies and attachments, and any and all Quotes and SOWs.

From time to time, The Launchpad may modify this Agreement with ten (10) days’ notice to Client. Unless otherwise specified by The Launchpad, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify The Launchpad  of such disagreement within the ten (10) day notice period, and The Launchpad  (at its option and as Client’s exclusive remedy) may either: (i) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted) or (ii) terminate this Agreement and provide to Client a refund of any Service fees that Client already paid with respect to the terminated portion of the applicable Order Term. The Launchpad will use reasonable efforts to notify Client of the changes through Client’s Account, email, or other means. Client may be required to click to accept the modified Agreement before using the Services in a renewal Order Term, and in any event continued use of the Services during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

  1. DEFINITIONS AND INTERPRETATION

1.1 Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.
a) “Account” means the online account and dashboard that The Launchpad  provides for Client to manage its use of the Services.
b) “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.
c) “Client Content” means any visual elements, images, text, or other content provided by Client to use within Services (e.g., to customize Client’s accounts) as permitted by The Launchpad  and the functionality of the Service.
d) “Client Data” means all data collected by or on behalf of Client through as well as the results, reports, and data feeds based on such collected data that are provided to Client through the Service (excluding any Launchpad report templates or other Launchpad Technology). If Client uploads any data directly into the Service, that data is also included in Client Data.
e) “Client Materials” means any Client materials (logo’s, marketing materials, technical briefs or Client Content) reasonably required for The Launchpad  to perform the Service.
f) “Contractors” means independent contractors and consultants who are not competitors of The Launchpad .
g) “Deliverables” means any deliverables provided by The Launchpad to Client in connection with the Service.
h) “Design Deliverables” means any Deliverables provided by The Launchpad as part of the MQL service that consist of and are expressly identified in the applicable SOW as visual design elements specific to Client (excluding any underlying Launchpad).
i) “Digital Marketing Services” means strategic, advisory, design, and/or other consulting services related to digital marketing provided by The Launchpad  in connection with Client’s use of the Service.
j) “Documentation” means the applicable Solutions descriptions and end user technical documentation made available with the Service and currently located here (as may be modified from time to time by The Launchpad in its sole discretion).
k) “EU GDPR” means the General Data Protection Regulation, (EU) 2016/679, as amended and supplemented.
l) “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
m) “Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer.
n) “Order Term” means the subscription term specified for each Service in the applicable Quote or SOW and, in the event that such Quote or SOW does not include a “start date”, the Order Term will commence on the date that The Launchpad  electronically confirms Client’s order to the applicable Service.
o) “Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).
p) “Professional Services” means services provided by The Launchpad under this Agreement, including configuration, implementation, or training services and Digital Marketing Services.
q) “Prohibited Data” means any personal data that could be legally considered sensitive in any applicable jurisdiction, including government issued identification, individual medical or health information (including PHI), financial account numbers, credit or debit card numbers, authentication factors (including security codes, passwords, biometric information, and answers to security questions), and special categories of personal data as defined in Article 9 of the EU GDPR.
r) “Protected Health Information” or “PHI” has the meaning defined in HIPAA.
s) “Quote” means The Launchpad -generated order documentation (including any Launchpad online registration, provisioning, or other order process) referencing this Agreement and mutually executed or electronically accepted by Client.
t) “Service” means the specific online MQL “as-a-service” products ordered by Client as identified on the applicable Quote or SOW.
u) “Services Data” means Client Data and Third Party Data.
v) “Statement of Work” or “SOW” means a statement of work for Professional Services executed by both parties describing the work to be performed, fees, and any applicable milestones, assumptions, and other technical specifications or related information.
w) “Tagging Methods” means The Launchpad code, tags, application programming interfaces (“APIs”), cookies, or other tracking, data collection, and content optimization methods made available to Client for use with Client Applications.
x) “Third Party Data” means non-personally identifiable analytics data retrieved by or on behalf of Client from Third Party Platforms through The Launchpad ’ access to Client’s credentialed accounts.
y) “Third Party Platform” means a third party platform, website, (i) from which the Service enable retrieval of Third Party Data or (ii) with which Solutions Data may be shared.

1.2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation.

  1. The Service

2.1 Overview – The Launchpad provides our clients with marketing qualified leads (MQLs) specifically targeted to technology solution offerings our clients can provide. The intent is to match end users’ technology pain with our client’s solution offerings.  

2.2 Access and Use – Client may access and use the Service specified on the applicable Quote or SOW during the applicable Order Terms solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote or SOW.

2.3 Permitted Users – Client may allow its Permitted Users to access and use the Service, provided (i) Client remains responsible for compliance by each Permitted User with all of the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Quote or SOW, and (ii) any use of the Service by a Permitted User is for the sole benefit of Client. Only Client and its Permitted Users may access and use the Service, and use of the Service by Client and its Permitted Users in the aggregate must be within the scope of use restrictions designated in the applicable Quote or SOW.

2.4 Accounts – Each Permitted User shall receive a unique user ID, which may not be shared. Client shall require that all Permitted Users keep their authentication factors (such as user ID and user credentials) strictly confidential and not share such information. Client shall be responsible for any and all actions taken in Client’s Account by its Permitted Users and shall immediately notify The Launchpad of any unauthorized access to or use of its Account.

2.5 General Restrictions – Client shall not (and shall not permit any third party to):

(a) rent, lease, provide access to, or sublicense any Service to a third party (except for Permitted Users as authorized in Section 2.3).

(b) reverse engineer, decompile, or disassemble the service except to the extent expressly permitted hereunder or by Law (and then only upon advance notice to The Launchpad);

(c) modify the service or any Documentation or create any derivative work from any of the foregoing.

(d) attempt to gain unauthorized access to any Service or other systems, networks, or data of The Launchpad, or interfere with or disrupt the integrity or performance of any such solution, systems, networks, or data.

(g) use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security or vulnerability of any Service or other systems, networks, or data of The Launchpad; or

(h) use any Service to retrieve, store, or transmit any malware (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs).

 

 

  1. OWNERSHIP

This is a subscription agreement for access to and use of the Launchpad’s MQL Service. Client acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the word’s “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement. Client agrees that The Launchpad  or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Service (including Tagging Methods, APIs, SDKs and Documentation), Deliverables (excluding Client Materials), all report templates and pre-existing content and materials of The Launchpad, all related and underlying technology, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Solutions or Professional Services that Client submits to The Launchpad  (collectively, “The Launchpad  Technology”). Except for the limited right to access and use the Service as expressly set forth in this Agreement, no rights in any Launchpad Technology are granted to Client. Further, Client acknowledges that the Service is offered as an on-line, Software-as-a-Service (SaaS) solution, and that Client has no right to obtain a copy of any underlying code or technology in any Solution, other than Tagging Methods.

  1. ORDER TERM, FEES & PAYMENT

4.1 Order Term and Renewals – Unless otherwise specified on the applicable Quote or SOW, each Term shall automatically renew for additional twelve (12) month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Order Term.

4.2 Fees and Payment – All fees are as set forth in the applicable Quote or SOW and shall be paid by Client in accordance with the invoice schedule and in the currency set forth in the applicable Quote or SOW (and if none, within thirty (30) days of the date of applicable invoice and in U.S. currency). The rates in the applicable Quote or SOW are valid for the Order Term set forth in such Quote or SOW and thereafter shall be subject to an increase of no more than fifteen percent (15%) per year (subject to Client retaining the same Service package, capacity and functionality levels). Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of The Launchpad), and all such taxes and levies are excluded from any rates or prices provided by The Launchpad. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by Law, whichever is less.

4.3 Suspension of Service – If (a) The Launchpad  has sent Client a payment reminder for an overdue payment, and Client fails to pay the amount due within ten (10) calendar days after receiving such payment reminder, or (b) Client has breached its obligations under Section 2.5 (General Restrictions), then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), The Launchpad reserves the right to suspend Client’s access to the applicable Service, content delivery and any related support, or Professional Services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach of Section 2.5 (General Restrictions), The Launchpad will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless The Launchpad reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of the Service, in which case suspension may be immediate.

4.4 Trial Subscriptions – If Client receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Client may use the Service in accordance with the terms and conditions of this Agreement and the applicable Quote or SOW for the period designated in such Quote or otherwise by The Launchpad (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Solutions. Client may not use a Trial Subscription for any other purpose, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire, and Client will have the option to purchase a full subscription to the Service. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service unless otherwise specified in the Quote for the Trial Subscription. The Launchpad has the right to terminate a Trial Subscription at any time for any reason. The Solutions may have a mechanism that limits access to such Solutions during the Trial Period and The Launchpad may otherwise restrict certain product functionality during the Trial Period (including limiting Purchased Units or other usage as may be specified by The Launchpad). Client shall not attempt to circumvent any such mechanism or restriction. Notwithstanding Section 3.3 (Data Retention Policy) or Exhibit B (Data Retention Policy), The Launchpad has no obligation to retain Service Data collected or retrieved with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SOLUTIONS ARE PROVIDED “AS IS” AND THE LAUNCHPAD WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE QUOTE.

4.5 MQL Service Deliverables – The Launchpad will attempt to provide an equal distribution of Survey Responders each month for the 12-month subscription period. If by the end of the 12-month subscription Survey Responders are still due to be delivered, The Launchpad will roll the undelivered portion of the MQL Responders owed into the following years contract and add the remaining amount to the new subscription total. For example – if The Launchpad is contracted to deliver a total of 120 MQL Surveys during the course of a 12-month period and ends up delivering fewer than committed, the balance owed will be added to the following 12-month subscription. If client elects not to renew the subscription the following year, The Launchpad will continue to deliver the MQL Surveys beyond the 12th month until all committed surveys are delivered.

 

  1. TERM AND TERMINATION

5.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.

5.2 Termination for Cause – Either party may terminate this Agreement (including all related Quotes) if the other party:
(a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice;
(b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
Upon termination by Client for The Launchpad ’ breach in accordance with this Section 5.2, The Launchpad shall promptly refund to Client any such Service fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by The Launchpad for Client’s breach, Client shall pay The Launchpad for the total fees contractually committed for all Order Terms.

5.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:
(a) immediately cease any and all use of and access to its Account and the Service (including any and all related The Launchpad Technology);
(b) Erase any and all copies of the Documentation, any The Launchpad -related passwords or access codes, and any other The Launchpad ’ Confidential Information in its possession; and
(c) remove all Tagging Methods from Client Applications and otherwise discontinue use thereof.

Upon request, Client shall certify to The Launchpad in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Account or any Solutions Data, and that The Launchpad may delete Client’s Account and Erase any Solutions Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

  1. WARRANTY AND DISCLAIMER

6.1 Limited Warranty – The Launchpad warrants, for Client’s benefit only, that the MQL Service will operate in substantial conformity with the applicable Documentation. The Launchpad ’ sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in The Launchpad ’ sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if The Launchpad  determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term.
The limited warranty set forth in the first sentence of this Section 6.1 shall not apply:
(a) unless Client notifies The Launchpad  within thirty (30) days following the date on which Client first noticed the non-conformity;
(b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or
(c) to any use of the Service provided on a no-charge basis (e.g., Trial Subscriptions).

6.2 Warranty Disclaimer – EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER THE LAUNCHPAD NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. THE LAUNCHPAD SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE LAUNCHPAD (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF SUCH STATUTORY RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

  1. PROFESSIONAL SERVICES

7.1 Provision and Payment – The Launchpad shall provide a Technical Account Manager and other Professional Services if purchased in the applicable Quote or SOW. The Professional Services may include (i) configuration, implementation, or training services and/or (ii) Digital Marketing Services. The scope of the Professional Services, and the fees for the Professional Services (whether on a fixed-fee or hourly rate basis), shall be as set forth in an applicable Quote or SOW.

7.2 Rights to Deliverables – Client may use any Deliverables solely in support of its authorized use of the applicable Service, subject to the same terms and conditions that apply to such Service and any additional terms in the applicable Quote or SOW. As an exception to the preceding sentence, for any Design Deliverables, effective upon full and final payment of all fees and expenses owing to The Launchpad, The Launchpad grants Client a non-exclusive, perpetual, worldwide, non-transferable, royalty-free license to use, reproduce, publicly display and perform, distribute, and create derivative works of the Design Deliverables for Client’s business purposes. While Client may continue to use the Design Deliverables after termination or expiration of this Agreement, such continued use is “AS IS”, with no warranty or other obligation from The Launchpad.

7.3 Client Materials – Client shall provide The Launchpad with access to Client Materials and hereby grants The Launchpad a limited right to use Client Materials solely for the purpose of performing the Professional Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to The Launchpad for such purpose.

7.4 Limited Professional Services Warranty – The Launchpad warrants that the Professional Services will be of a professional quality and conform to generally prevailing industry standards. Client must give written notice of any material breach of the foregoing warranty within thirty (30) days from the date the Professional Services are completed. In such event, at The Launchpad ’ sole discretion, The Launchpad  shall either:
(a) use commercially reasonable efforts to re-perform the Professional Services in a manner that conforms to the foregoing warranty; or
(b) if The Launchpad  fails to re-perform or decides not to re-perform the Professional Services, refund to Client the portion of fees paid by Client to The Launchpad  for the nonconforming Professional Services.
The foregoing procedures shall constitute The Launchpad ’ sole liability (and Client’s sole and exclusive remedy) for any breach of the warranty in this Section 11.4.

  1. LIMITATION OF REMEDIES AND DAMAGES

8.1 Consequential Damages Waiver – NEITHER PARTY (NOR ITS LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2 Liability Cap – EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO THE LAUNCHPAD DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.

  1. INDEMNIFICATION

9.1 By The Launchpad  – The Launchpad  shall defend Client from and against any claim by a third party alleging that The Launchpad ’ proprietary technology used in the performance of the Service, when used as authorized under this Agreement, actually infringes a U.S. or Great Britain (“GBR”) patent, U.S. or GBR copyright, or U.S. or GBR trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by The Launchpad  (including reasonable legal fees) resulting from such claim.
If Client’s use of any Service is (or in The Launchpad ’ opinion is likely to be) enjoined, if required by settlement, or if The Launchpad  determines such actions are reasonably necessary to avoid material liability, The Launchpad  may, in its sole discretion:
(a) substitute substantially functionally similar products or services;
(b) procure for Client the right to continue using the Service; or
(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Service fees that Client already paid with respect to the terminated portion of the applicable Order Terms.
The foregoing indemnification obligation of The Launchpad  shall not apply:
(1) if the Service is modified by any party other than The Launchpad, but solely to the extent the alleged infringement is caused by such modification;
(2) if the Service is combined with products or processes not provided by The Launchpad, but solely to the extent the alleged infringement is caused by such combination;
(3) to any unauthorized use of the Service;
(4) to any action arising as a result of Service Data or any third-party deliverables or components contained within the Service;
(5) to any release or version of the Tagging Methods other than the then-current release or version; or
(6) if Client settles or makes any admissions with respect to a claim without The Launchpad ’ prior written consent.

THIS SECTION 10.1 SETS FORTH THE LAUNCHPAD’ AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM THAT THE LAUNCHPAD’ PROPRIETARY TECHNOLOGY USED IN THE PERFORMANCE OF THE SOLUTIONS INFRINGES A U.S. OR GBR PATENT, U.S. OR GBR COPYRIGHT, OR U.S. OR GBR TRADEMARK.

10.2 By Client – Client shall defend The Launchpad  from and against any claim by a third party arising from or relating to:
(a) any Service Data or Client Application; or
(b) any breach or alleged breach by Client of Section 3.4 (Client Obligations); or
(c) any service or product offered by Client through the Client Applications,
and shall indemnify and hold harmless The Launchpad from and against any damages awarded against The Launchpad  or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.

10.3 Indemnification Process – The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification:
(a) prompt written notice of a claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice);
(b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim; and
(c) all reasonable necessary cooperation of the indemnified party.
The indemnified party may participate in the defense of any claim with counsel of its own choosing at its expense. The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Solutions or allegedly infringing materials).

  1. CONFIDENTIAL INFORMATION

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical, and financial information that it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, any Launchpad Technology, performance information relating to the Solutions, and the terms and conditions of this Agreement and all Quotes and SOWs shall be deemed Confidential Information of The Launchpad without any marking or further designation. Except as expressly authorized herein, the Receiving Party will:
(a) hold in confidence and not disclose any Confidential Information to third parties; and
(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know provided that: (i) such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11; and (ii) the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
(1) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(2) is or has become public knowledge through no fault of the Receiving Party;
(3) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(4) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, that upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

  1. MARKETING

During the term of the Agreement, The Launchpad may use Client’s name, logos, and trademarks to identify Client as a customer on The Launchpad’ website, social media, and other marketing materials.

  1. GENERAL TERMS

13.1 Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of The Launchpad. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.

13.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

13.3 Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the laws of the State of Florida and the U.S. without regard to conflicts of law’s provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in Orlando Florida and both parties hereby submit to the personal jurisdiction of such courts.

13.4 Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

13.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the SOW or at such other address as may be given in writing by either party to the other in accordance with this Section

13.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

13.7 Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

13.8 Updates – Client acknowledges that the Services is a subscription-based offering and that, in order to provide improved customer experience, The Launchpad may make changes to the Service, and The Launchpad will update the applicable Documentation accordingly.

13.9 Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

13.10 Subcontractors – The Launchpad may use the services of subcontractors and permit them to exercise the rights granted to The Launchpad in order to provide the Service and Professional Services under this Agreement, provided that The Launchpad remains responsible for:
(a) compliance of any such subcontractor with the terms of this Agreement; and
(b) the overall performance of the Solutions as required under this Agreement.