Service Access Agreement
By its execution of a Forecasa, Inc. (“Forecasa”) Service Order (each, a “Service Order”), the Customer set forth on the signature page to the Service Order (“Customer”) accepts and agrees to, and intends to be legally bound by, this Service Access Agreement (this “Agreement”), as of the date of the Service Order. Capitalized terms used but not defined in this Agreement have the meanings given in the Service Order.
NOW THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Service Access. Forecasa grants to Customer during the service term set forth in the Service Order (including the renewal periods set forth in the Service Order, if any, the “Term”) the right for Customer and the authorized users set forth in the Service Order (“Users”) to access and use the Forecasa service set forth in the Service Order (the “Service”). In addition, Forecasa will provide Customer with Forecasa’s technical and user support services in accordance with its standard practices.
2. Fees. Customer will pay all fees set forth in the Service Order, without setoff or deduction, in accordance with the terms set forth in the Service Order. After the initial service term set forth in the Service Order, Forecasa may increase such fees prior to each additional renewal period during the Term, and Customer’s continued use of the Service will constitute Customer’s acceptance of such adjusted fees. Such fees will be due prior to the commencement of the applicable period. In the absence of increase by Forecasa, the fees will automatically increase by five percent (5%) for each such period. The total number of Users will not exceed the number set forth in the Service Order, if any, except as expressly agreed to in writing and subject to any appropriate adjustment of the fees payable by Customer. Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, all of which, other than taxes on Forecasa’s income, will be the responsibility of Customer.
3. Customer Responsibilities.
3.1. Compliance. Customer will operate its business and use the Service and Forecasa Content (defined below) in compliance with this Agreement, the documentation supplied by Forecasa relating to the Service (“Documentation”), any policies or requirements issued in writing by Forecasa, and applicable laws, and without violating or infringing any intellectual property right or other right of any third party.
3.2. Circumvention. Customer will not, directly or indirectly, (i) license, sell, transfer, distribute, publish or otherwise make available or disclose the Service, Documentation, Forecasa Content, Forecasa technology or Forecasa proprietary rights (“Forecasa Assets”), (ii) copy, modify, adapt, decompile, reverse engineer, attempt to duplicate or make derivative, competitive or its own works based upon any of the Forecasa Assets, including any ideas, know-how, features, functions or graphics related to the Service, (iii) frame or mirror any Forecasa information or remove any proprietary notices from the Service or Forecasa Content, (iv) upload or provide any information, whether harmful or otherwise, to the Service, except as expressly authorized by Forecasa in writing, (v) interfere with or disrupt the integrity or performance of the Service, (vi) attempt to gain unauthorized access to the Service or any Third Party Service (defined below), (vii) use the Service other than for its own internal business purposes, including for any purpose that is competitive with Forecasa or for the benefit of any third party, or otherwise for any purpose other than the purpose for which the Service is intended, or (viii) assist any third party in performing any of the foregoing.
3.3. Content. Customer will not, directly or indirectly, (i) download, distribute or copy any information, data or material (including any analytics or reports or data therein) generated, included or provided, or otherwise made available by Forecasa (including by email), in any format, by, in or through the Service (“Forecasa Content”), unless Customer includes attribution to Forecasa on any Forecasa Content exported by Customer, (ii) modify, adapt, attempt to duplicate or make derivative, competitive or its own works based upon any Forecasa Content, or (iii) assist any third party in performing any of the foregoing. Without limiting the foregoing, Customer will not (or assist any third party to), directly or indirectly, (a) scrape, collect or use any automated data mining tools (such as spiders or robots or similar data gathering or extraction tools) to obtain any Forecasa Content, (b) download, store on Customer’s hardware or hosted storage platforms, print, export, copy or remove any watermark from any Forecasa Content that is not expressly made available for export by Forecasa, (c) use any PDF, CSV or other downloadable data, in any format, to test, train or develop NLP, OCR, AI or other language models, or (d) publish or post any Forecasa Content on any public-facing or third-party website or social media platform.
3.4. Export. Customer will not remove or export from the United States or allow the export or re-export of the Service, Forecasa technology or Forecasa proprietary rights in violation of any laws of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
3.5. Confidentiality. Without limiting anything in this Section 3, Customer will maintain in strict confidence, and use reasonable care to protect and safeguard (i) the fees and other terms and conditions of this Agreement or other information relating to the relationship between Customer and Forecasa, and (ii) Forecasa Content (other than to its Representatives (defined below) or Users) or other information, in any form, made available to Customer and reasonably considered by Forecasa as proprietary. Without limiting anything in this Section 4, Customer will not, directly or indirectly, except as permitted in this Agreement, (i) reproduce, disclose, or make available to any third party any such information, (ii) assist or enable any third party to access or use any such information, or (iii) use or exploit any such information to Customer’s or any other person’s or entity’s enrichment or advantage or to derive any economic gain or for any other purpose whatsoever. Without limiting the foregoing, Customer will not demonstrate, make available or otherwise describe the feature set of the Service to any person or entity that provides products or services that are similar to or in competition with those of Forecasa. All materials (including electronic media) provided by Forecasa, and copies thereof, in which any such information may be contained will remain the property of Forecasa. Upon written request of Forecasa, Customer will promptly deliver to Forecasa all such materials and destroy all materials prepared by Customer in which any such information may be contained. Notwithstanding the termination or expiration of this Agreement of the delivery or destruction of such materials, Customer will continue to be bound by its obligations under this Section 3.5.
3.6. Business. Customer will have sole responsibility and liability for all matters and circumstances relating to Customer’s business, including its use of or decisions based on Forecasa Content. Customer acknowledges that certain Forecasa Content will be obtained from or provided by third parties or publicly available resources (including through APIs or data gathering tools created or implemented by Forecasa) and agrees that Forecasa will have no responsibility or liability for the accuracy, completeness, unavailability or any other aspect of such third party information.
3.7. Customer Data. Customer will obtain and maintain all required consents from Users and third parties for access to or use of Customer Data (defined below) and will ensure legal compliance in connection with the sharing and disclosure of Customer Data with and to Forecasa. Customer consents to Forecasa’s use of Customer Data in order for Forecasa to provide the Service. “Customer Data” means data that is provided to Forecasa by Customer or a User in the course of using the Service in accordance with this Agreement, including Users’ names, addresses, telephone numbers, email addresses or other personally identifying information.
3.8. Monitoring. Forecasa reserves the right to monitor Customer’s and its Users’ use of the Service.
3.9. Accounts. Customer will establish access requirements for its Users, subject to access limits or restrictions of Forecasa, will keep its User accounts accurate (including by removing the accounts of Users that are no longer authorized), and will be responsible for any and all use of, and activities, data, transactions or administration conducted through or that occur under, Customer’s account or its User accounts, whether or not authorized by Customer or the User (including any account of a User that is no longer authorized or that uses the Service other than for Customer).
3.10. Responsibility for Users. Customer will be responsible and liable for any acts or omissions of its directors, members, shareholders, partners, managers, officers, employees, agents, representatives, advisors and subcontractors (“Representatives”) and Users, including any that result in, or if taken by Customer would constitute, a breach of this Agreement.
3.11. Use of Service Data. Customer will be responsible for how Customer uses Forecasa Content (which, for clarity, includes all data provided through the Service and is sometimes referred to as “Service data”). Even if it is produced or stored by the Service, Customer will be responsible for how Customer uses the Service and Service data, including for Customer’s business requirements, legal or regulatory requirements, or other use. Forecasa has no responsibility for Customer’s decisions or actions based on Service data, including if the Service produces errors or presents data that is not complete or correct. Customer acknowledges that certain data provided by or included in the Service will be provided by parties other than Forecasa, and Forecasa has no responsibility for that information.
3.12. Additional Use Limitations. In addition to, and without limiting, anything in this Agreement:
(i) Customer will not use the Service or Forecasa Content, including Service data, for any purpose other than Customer’s own internal business purposes, and Customer will not disclose, disseminate, reproduce, publish, display, resell, relicense or redistribute the Service, Forecasa Content or any Service data to third parties, in whole or in part. Customer will not use the Service, Forecasa Content or Service data for any purpose other than that for which it is intended.
(ii) Customer will not (a) disclose, disseminate, reproduce or publish any portion of the Service or Forecasa Content, including Service data, to any third party in any manner (including via the internet) or permit the same by Customer’s Representatives or Users, (b) process or combine any portion of the Service, Forecasa Content or Service data or permit any portion of the Service, Forecasa Content or Service data to be processed or combined with other data or software from any other source, (c) allow access to the Service, Forecasa Content or Service data through any terminals located outside of Customer’s operations or facilities, (d) use the Service, Forecasa Content or Service data to create, enhance or structure any database, (e) use the Service, Forecasa Content or Service data to create derivative products or derivative datasets, (f) use the Service, Forecasa Content or Service data in connection with, or to enable development of, machine learning, rules engines, or other similar automated processes or, or (f) use the Service, Forecasa Content or Service data in connection with artificial intelligence technologies, models, software, platforms or tools including, without limitation, ChatGPT, Bard, Gemini and similar artificial intelligence technologies.
(iii) Customer will not use the Service or Forecasa Content, including Service data, (a) as a factor in establishing an individual’s eligibility for credit or insurance, (b) in connection with underwriting individual insurance, (c) in evaluating an individual for employment purposes, (d) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority, (e) in any way that would cause the information to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., or (f) in any other manner that would cause such use to be construed as a consumer report by any governmental authority.
(iv) Customer will not use the Service or Forecasa Content, including Service data, in any way that (a) infringes Forecasa’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or rights of publicity or privacy, (b) violates any law, statute, ordinance or regulation, or (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(v) If Customer uses the Service or Forecasa Content, including Service data, for marketing purposes, Customer will comply with the published guidelines of the Association of National Advertisers and all applicable non-solicitation and privacy laws and regulations.
(vi) Customer will (a) obtain any necessary licenses, certificates, permits, approvals or other authorizations required by federal, state or local statute, law or regulation applicable to Customer’s use of the Service or Forecasa Content, including Service data, and (ii) limit use of the Service, Forecasa Content or Service data to Customer’s employees who have been appropriately trained.
(vii) Customer will not copy, modify, adapt, disassemble, decompile, manipulate, reverse engineer or attempt to duplicate or make derivative works from any confidential or proprietary information of Forecasa or its third party service providers or from any portion of the Service or Forecasa Content, including Service data. Customer will implement commercially reasonable and accepted information security procedures, practices, and measures to prevent unauthorized use or disclosure of any such information or any portion of the Service, Forecasa Content or Service data and any violation of the foregoing, including by Customer’s Representatives and End Users.
(viii) Customer will have no right or license to use any trademark of Forecasa or of its third-party service providers.
(ix) If Customer downloads lists from Forecasa, Customer will use the lists solely for Customer’s direct marketing purposes (except where otherwise restricted by applicable law) and (a) will not download greater than 10,000 discrete addresses per end user per month and (b) will utilize Forecasa Content and Service data solely for direct marketing solely of Customer’s own products and services.
(x) Customer will not use the Service or Forecasa Content, including Service data, or any Forecasa product, (a) to create, replace, supplement or enhance any title, legal, vesting, ownership or encumbrance report for the purposes of underwriting title insurance, (b) coupled with alternative title insurance approaches or products, (c) in connection with, or to enable development of machine learning, rules engines, or other similar automated processes, and (iv) in connection with artificial intelligence technologies, models, software, platforms or tools including, without limitation, ChatGPT, Bard and similar artificial intelligence technologies.
(xi) Customer will not share the Service or Forecasa Content, including Service data, or part thereof, with any third-party artificial intelligence technologies unless the third-party artificial intelligence providers are contractually prohibited from (a) using the Service, Forecasa Content or Service data to develop or improve the AI technology, (b) storing any portion of the Service, Forecasa Content or Service data, and (c) redistributing any portion of the Service, Forecasa Content or Service data to any third party.
(xii) Customer will ensure compliance with the policies and requirements in this Agreement, including the foregoing, by its Representatives and Users.
(xiii) Customer will permit Forecasa to audit Customer’s compliance with the policies and requirements in this Agreement, including the foregoing, and will provide Forecasa with all reasonably requested information to facilitate such audit.
3.13. Disclaimers. Customer acknowledges and agrees to the following disclaimers:
THE SERVICE AND FORECASA CONTENT, INCLUDING SERVICE DATA, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES BASED ON COURSE OF DEALING OR USAGE IN TRADE.
FORECASA DISCLAIMS ANY AND ALL LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES NECESSARY TO THE CONDUCT OF A REAL ESTATE CLOSING.
FORECASA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR FORECASA CONTENT, INCLUDING SERVICE DATA, ARE COMPLETE OR FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE OR FORECASA CONTENT, INCLUDING SERVICE DATA, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
FORECASA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES OR FORECASA CONTENT, INCLUDING SERVICE DATA, IN ANY GEOGRAPHIC AREA.
THE SERVICE AND FORECASA CONTENT, INCLUDING SERVICE DATA, ARE NOT INSURED, AND CUSTOMER WILL NOT CONSTRUE THE SERVICE, FORECASA CONTENT OR SERVICE DATA AS A REPRESENTATION BY FORECASA OR ANY OTHER PERSON OR ENTITY AS TO THE CONDITION OF TITLE TO REAL PROPERTY. CUSTOMER WILL NOT CONSTRUE THE SERVICE, FORECASA CONTENT OR SERVICE DATA AS AN ABSTRACT, LEGAL OPINION, OPINION OF TITLE, TITLE INSURANCE COMMITMENT OR PRELIMINARY REPORT, OR ANY FORM OF TITLE INSURANCE OR GUARANTY. CUSTOMER ACKNOWLEDGES THAT THE SERVICE, FORECASA CONTENT OR SERVICE DATA MAY NOT INCLUDE ALL RECORDED CONVEYANCES, INSTRUMENTS OR DOCUMENTS WHICH IMPART CONSTRUCTIVE NOTICE WITH RESPECT TO ANY CHAIN OF TITLE DESCRIBED IN THE SERVICE, FORECASA CONTENT OR SERVICE DATA.
3.14. Service Availability. Customer acknowledges that the availability of certain Forecasa Content, including Service data, will vary substantially from area-to-area and that circumstances may exist or arise which prevent Forecasa from providing such content or data or achieving complete representation of all data in the Service. Forecasa may limit or discontinue, and may terminate, the provision of the Service, Forecasa Content and Service data, without liability, for geographic locations where Forecasa or any third party provider of service or data is restricted by rules, regulations, laws or governmental entities, or Forecasa or any third party provider of service or data has discontinued the collection of data, or Forecasa or any third party provider of service or data is prohibited by third party providers, of if the Service or Service data is subject to an actual or potential claim of intellectual property infringement, or Forecasa’s access to Service data, or any part of such data, from any third party provider of service or data terminates or is limited. Forecasa may modify the Service or upgrade or change the production, support, delivery and maintenance of the Service or Forecasa Content, including Service data.
4. Data Processing
4.1. Data Security. Forecasa warrants that (i) Customer Data will be hosted on systems infrastructure that is consistent with commercially reasonable industry practices for comparable service providers of similar services under similar conditions, (ii) Customer Data will be managed by Forecasa utilizing technical and administrative safeguards designed to protect against unauthorized access to, or disclosure or use of, Customer Data by Forecasa employees and contractors and against reasonably anticipated third party threats to the security of Customer Data, (iii) Forecasa will promptly report to Customer any unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data, including a description of any mitigation and corrective action to be taken by Forecasa, (iv) Forecasa will use Customer Data of Users in accordance with Forecasa’s privacy policy, available at www.forecasa.com/privacy-policy, and (v) Forecasa will comply with all laws to which Forecasa is subject regarding any unauthorized access to (including any breach of systems security), or disclosure or use of, Customer Data. Except for breach by Forecasa of this Section 4.2, Forecasa will have no responsibility or liability with regard to the privacy or security of Customer Data or any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data.
4.2. Third Party Applications. Customer consents to Forecasa’s use of the platforms, systems, products, services and applications of third parties in connection with the provision of the Services (“Third Party Services”) and to the sharing, use and processing of Customer Data with and by such third parties solely for such purpose. Notwithstanding anything to the contrary, Forecasa will have no responsibility or liability in connection with any of the Third Party Services, including in connection with any unauthorized or unlawful disclosure, misappropriation, destruction, modification, loss, alteration, acquisition, use or access of Customer Data or other data on or processed by any of the Third Party Services.
5. Proprietary Rights
5.1. Title to Service. The Forecasa Assets, including Forecasa names, trade secrets, know-how, ideas, designs, forms, methods and other tangible or intangible material or information, and the system data set forth in Section 5.3, are and remain the valuable property of Forecasa. Forecasa will have exclusive ownership of all materials, technology, ideas, inventions or other work product or information that are developed by Forecasa (including any based on feedback of Customer, any rights to which Customer hereby assigns to Forecasa) in the course of providing the Service.
5.2. Warranty Against Infringement. Forecasa warrants that the Service (other than Forecasa Content provided by or obtained through third parties or any of the Third Party Services) does not infringe any third party’s United States patent, copyright or trade secret.
5.3. System Data. Notwithstanding anything to the contrary, Forecasa will have the right to monitor, collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (including information concerning Customer’s use of the Service and Customer Data and data derived therefrom), and Forecasa will be entitled, during and after the term of this Agreement, to use such information and data to improve or enhance the Service, or for other development, diagnostic, or corrective purposes in connection with the Service, or to develop new products or services, and to disclose such information and data in aggregated or other de-identified form in connection with Forecasa’s business.
6. Termination.
6.1. Termination Rights. In addition to any other available rights or remedies or as set forth in the Service Order, (i) Customer may, in its sole discretion, elect to terminate this Agreement (a) by written notice to Forecasa given not less than sixty (60) days prior to the expiration of the initial service term set forth in the Service Order or of any renewal period of the Term thereafter, or (b) after written notice to Forecasa describing in reasonable detail a material breach of this Agreement by Forecasa and the expiration of a period of not less than thirty (30) days in which such breach will remain uncured, (ii) Forecasa may, in its sole discretion, terminate this Agreement after written notice to Customer describing in reasonable detail a material breach of this Agreement by Customer, and the expiration of a period of not less than thirty (30) days in which such breach will remain uncured, provided that any failure by Customer to make timely payment in full of any fees or other amounts due and owing under this Agreement will be deemed material and there will be no cure period for any such failure, and (iii) either party may, in its sole discretion, elect to terminate this Agreement upon the other party’s failure to continue to function as a going concern or to operate in the ordinary course of business, or if such party commits an act of bankruptcy within the meaning of the federal bankruptcy laws, or if bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings will be instituted by or against such party.
6.2. Consequences. Upon termination or expiration of the Term or this Agreement, Customer will cease use of the Service, notify all Users that use of the Service has been discontinued, and surrender to Forecasa all Documentation and any other property or materials that have been provided to Customer by Forecasa. Upon or after any such termination or expiration, or any material breach of this Agreement by Customer and the expiration of the cure period above, if any, or if Forecasa reasonably determines that it has reason to do so, Forecasa may, in its sole discretion, without liability, elect to shut down the Service or suspend, terminate or prevent Customer’s and Users’ access to or use of the Service.
6.3. Refunds. In the event of termination by Customer pursuant to Section 6.1(i)(b) (i.e., material breach), Customer will be entitled to a refund of all fees paid for any period after the date of termination. Except in the event of such termination or for the exclusive remedies set forth in this Agreement, Customer will not be entitled in any circumstances to a refund of any fees.
6.4. User Account Termination. Forecasa may terminate or suspend any individual User account or access to the Service that Forecasa reasonably deems inappropriate. In addition, upon or after the occurrence of any breach or noncompliance by a User of this Agreement (including any act or omission that if taken by Customer would constitute a breach of or noncompliance with this Agreement), Forecasa’s end-user agreement, or any terms or conditions, policy or instruction of Forecasa relating to the use of the Service, Forecasa may, in its sole discretion, elect to terminate or suspend the provision of the Service to such User or the User’s access to the Service or any Customer Data.
6.5. Data Transition. In the event of termination or expiration of this Agreement, Forecasa will make Customer Data available to Customer in a mutually agreed upon manner and format. Forecasa will have no obligation to retain any Customer data for more than thirty (30) days after termination of this Agreement.
6.6. Survival. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, will survive termination or expiration of the Term or this Agreement, including Sections 3.2, 3.3, 3.5, 5.1, 5.3 and 7 – 9.
7. Indemnification. Forecasa agrees to indemnify, defend and hold harmless Customer and its Representatives from and against any and all losses, claims, obligations, liabilities, actions, suits, proceedings, demands, judgments, payments, costs and expenses (including court costs, amounts paid in settlement, judgments, and reasonable attorney fees and other expenses) and damages of any kind, nature or description whatsoever (“Damages”) arising out of any breach by Forecasa of Section 4.1 or Section 5.2 or any violation by Forecasa of applicable laws. Customer agrees to indemnify, defend and hold harmless Forecasa and its Representatives from and against any and all Damages arising out of (i) any breach of this Agreement by Customer, (ii) any matter for which Customer has responsibility or liability under this Agreement or (iii) any act or omission of Customer’s Representatives or Users.
8. Limitations of Liability.
8.1. No consequential damages. In no event will either party be liable or responsible to the other for any type of incidental, punitive, special, exemplary, reliance, indirect or consequential Damages, even if advised of the possibility of such Damages and regardless of the foreseeability of such Damages.
8.2. Liability maximum. In the event Forecasa will be liable to Customer notwithstanding the limitations and exclusive remedies herein, Forecasa’s liability, will not exceed, in the aggregate, the greater of (i) the Service access fees paid by Customer to Forecasa during the twelve (12) months preceding the date on which the liability first arose or (ii) the insurance proceeds collected by Forecasa in respect of the circumstance giving rise to the liability.
8.3. Warranty Exclusions. Except for the express warranties set forth in this Agreement, Forecasa does not make, and hereby disclaims, to the full extent permitted by law, any and all express or implied (by operation of law or otherwise) or statutory warranties, including warranties of merchantability, fitness for a particular purpose, noninfringement and title and any warranties arising from a course of dealing, usage or trade practice. Customer hereby waives all Damages based on any of the foregoing.
9. Additional Provisions.
9.1. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (except with respect to any fees due or payable hereunder) due to any cause beyond its reasonable control, including acts of God, sabotage, labor dispute, governmental act, network or connectivity failure, or failure of any third party software, facilities, servers or other products, equipment or services (even if any may be included in the Service).
9.2. No Publication. The grant of access and use of the Service under this Agreement and the carrying out of the transactions contemplated hereby will not be deemed publication by either party of all or any portion of the Service or Documentation.
9.3. No Third Party Beneficiaries. There will be no third-party beneficiaries to this Agreement (including any Users).
9.4. Severability and Waiver. In the event any provision of this Agreement is held to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party.
9.5. Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party may assign this Agreement in whole as part, directly or indirectly, without the express prior written consent of the other party, and any attempted assignment without such consent will be void, provided that, either party may, without the consent of the other party, assign all of its rights and obligations under this Agreement to any person or entity that purchases all or substantially all of its assets or any successor entity to such party by way of merger or other business combination.
9.6. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Service Order at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is later.
9.7. Relationship of Parties. Forecasa and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Forecasa and Customer. Neither Forecasa nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.8. Entire Agreement. This Agreement, including each Service Order (which is incorporated into and made part of this Agreement), constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. No text or information set forth on any other purchase order, preprinted form or document (other than a Service Order) will add to or vary the terms and conditions of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or handwritten document, e-mail or other electronic format. The word “including” (and correlative words, such as “include” and “includes”) will not be construed as a term of limitation but will mean including without limiting the generality of any description preceding such term.
9.9. Amendment. A Service Order may be changed only by a written document signed by authorized representatives of Forecasa and Customer. This Agreement, however, may be changed by Forecasa from time to time. Such changes will be effective upon notice to Customer, including by email, and posting of such changes on Forecasa’s website. Customer’s continued use of the Service following such notice and posting of changes will constitute Customer’s acceptance and agreement to be legally bound by any such changes.
9.10. Binding Agreement. Each of the parties to this Agreement, and each person executing the Service Order or this Agreement on behalf of such party, represents and warrants that all necessary action has been taken to authorize such party’s execution, delivery and performance of this Agreement and that this Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.
9.11. Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under this Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) will be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity. Customer will be liable for all costs and expenses (including reasonable attorney fees) incurred by Forecasa in connection with collecting any fees or enforcing its rights under this Agreement.
Last updated: December 10, 2024
