This Services Agreement (this “Agreement”) is provided by Torque LLC, located at 700 Lavaca Street, Suite 1401, Austin, TX 78701 and its affiliates (“Torque”). Torque provides to automotive dealers and services providers, mobile applications, websites, related content, and other vehicle related services, including those that facilitate the provision and scheduling of vehicle test drives and vehicle maintenance and repair, as well as the related transportation and sale of goods (collectively, the “Services”). Partner’s use of the Services is subject to and governed by this Agreement. Torque may, at its discretion, update this Agreement at any time. Partner can access and review the most current version of this Agreement at the URL for this page or as otherwise made available by Torque. Capitalized terms not herein defined shall have the meaning set forth in the Subscription Order Form.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY EXECUTING AN ORDER FORM OR SIMILAR DOCUMENT THAT INCORPORATES THIS AGREEMENT, REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, PARTNER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO PARTNER. IF PARTNER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PARTNER MAY NOT ACCESS OR USE THE SERVICES.
THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR PARTNER’S ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT (EACH, A “Claim”), AND PARTNER AGREES THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 11.7 CAREFULLY TO UNDERSTAND PARTNER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
1.1 “Access Credentials” means unique access credentials provided by Torque to enable Partner and its Authorized Users to access the Services.
1.2 “Authorized User” means Partner’s employee, contractor, or agent who works within Partner’s particular facility and is authorized by Partner to access the Services solely on behalf of and within the scope of their relationship to the Partner and is subject to the terms and conditions of this Agreement.
1.3 “Automotive Services” means vehicle test drives, vehicle maintenance and repair, and other services, as well as the related transportation and sale of goods provided by Partner.
1.4 “Partner” means an entity that is primarily in the business of selling or servicing motor vehicles and that executes the Order Form, registers an account on the Services, or otherwise accesses or uses the Services.
1.5 “Documentation” means Torque-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
1.6 “Consumers” means any individual who uses the Services existing or potential consumer of Partner’s products and services.
1.7 “Restrictions” means the limitations in Section 2.6 of this Agreement and those specified in an Order Form.
1.8 “Order Form” means the Torque Order Form executed by authorized representatives of the parties which incorporates this Agreement by reference.
2.1 Use of the Services. Subject to and conditioned on Partner’s and its Authorized Users’ ongoing compliance with this Agreement and any terms set forth in the applicable app store terms of service, Torque grants to Partner, and Partner accepts, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right during the Term to use the Services solely for the internal business purposes of the Partner to upload Partner Content to the Services, deliver such Partner Content to Consumers, and enable the Automotive Services, as may be further set forth in the Order Form.
2.2 Use of the Documentation. Subject to and conditioned on Partner’s and its Authorized Users’ ongoing compliance with this Agreement, Torque grants to Partner a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right, during the Term, to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely as necessary to use the Services in accordance with this Agreement. Partner’s, and all Authorized Users’, right to use the Documentation is subject to the Restrictions and conditioned upon Partner’s and Authorized Users’ compliance with this Agreement, including without limitation the Restrictions.
2.3 Technical Support Services. For so long as Partner is current with its payment of the fees specified in the Order Form, Torque will provide Partner with technical support services by responding within a reasonable to requests for support by Partner made through the Services.
2.4 Use by Partner. Subject to the terms of this Agreement, an Authorized User may exercise the rights granted under Sections 2.1 and 2.2 solely on behalf of Partner and only for so long as he or she remains an Authorized User.
2.5 Access Credentials. Subject to the terms of this Agreement, Torque will provide Partner with Access Credentials to enable Partner and its Authorized Users to access the Services. Neither Partner nor any Authorized User will make its Access Credentials available to any third party. Partner is fully responsible for all access to the Services using Access Credentials provided to Partner or its Authorized Users. Partner and each Authorized User must comply with all terms and conditions posted on the Services.
2.6 Restrictions. Except as otherwise explicitly provided in this Agreement, Partner will not, and will not allow third parties to: (a) rent, lease, or otherwise permit third parties to use the Services, Services Content, or Documentation; (b) provide the Services or Services Content to third parties (e.g., as a service bureau, rental or managed services basis), provide or permit other individuals or entities to create Internet "links" to the Services or Services Content, or "frame" or "mirror" the Services or Services Content on any other server, or wireless or Internet-based device; (c) circumvent or disable any security or other technological features or measures of the Services, Services Content, or Documentation, including for benchmarking or other competitive purposes; (d) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Services, Services Content, or Documentation; (e) attempt to gain unauthorized access to the Services; (f) make or publish any representations, warranties, or guarantees on behalf of Torque concerning the Services, Services Content, or Documentation without ’s specific prior written approval; (g) use the Services, Services Content, or Documentation in violation of applicable laws and regulations, including export, data transmission, and data privacy laws and regulations; (h) use the Services to protect or store any applications that are known to contain viruses, worms, Trojan horses, or other harmful code; (i) intentionally interfere with or disrupt the integrity or performance of the Services; or (j) use, remove or alter any proprietary notices or marks, including trademarks and service marks, from or on the Services, Services Content, or Documentation.
2.7 Compliance with Laws. Partner will use the Services, Services Content, and Documentation and provide data to Torque in compliance with all applicable laws and regulations.
2.8 Protection against Unauthorized Use. Partner will use reasonable efforts to prevent any unauthorized use of the Services, Services Content, and Documentation (including unauthorized use of Access Credentials) and immediately notify Torque in writing of any unauthorized use that comes to Partner’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Partner, Partner will take all steps reasonably necessary to terminate the unauthorized use. Partner will reasonably cooperate and assist with any actions taken by Torque to prevent or terminate unauthorized use of the Services, Services Content, or Documentation.
3.1 Services Content. The content on the Services, such as data, including Consumer location data, text, images, graphics, interfaces, photographs, including photographs of Consumer driver’s licenses, insurance cards, and vehicle registrations, illustrations, audio and video clips, marks, logos, trade names, and any other information and materials displayed through the Services (collectively, the “Services Content”) is provided by Torque for informational purposes only and may be protected by copyright, trademark and other United States and foreign laws. Title to the Services Content remains exclusively with Torque or its licensors, and any use of the Services Content not expressly permitted by this Agreement is a breach of this Agreement and may be a violation of copyright, trademark, or other laws. Except as stated herein, none of the Services Content may be copied, reproduced, distributed, displayed, republished, downloaded, posted or transmitted in any form or by any means without the prior written permission of Torque. Partner will not (and will not allow others to) aggregate, cache, or store any Consumer location data or any other geographic information from the Services and may only use such location data or geographic information to identify the location to provide the specific Automotive Services at the time requested by Consumers. Any other use of such location data or geographic information beyond the license granted herein, including for analytical purposes, is a breach of this Agreement.
3.2 Partner Content. Torque does not claim ownership of any feedback, information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials that Partner may upload, post, email, transmit, or otherwise make available through the Services (“Partner Content”). However, you hereby grant Torque and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Partner Content (in any form and any medium, whether now known or later developed) as necessary to provide the Services or as otherwise permitted by law. Partner acknowledges and agrees that Torque has no obligation to pre-screen Partner Content, although Torque reserves the right in its sole discretion to pre-screen, reject or remove any content from the Services. Partner acknowledges and agrees that the technical processing and transmission of data associated with the Services, including Partner Content, may require: (i) transmissions across borders and over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
3.3 Reservation of Rights. The Services, Services, and Documentation are licensed, not sold, and Torque retains and reserves all rights not expressly granted in this Agreement. Partner acknowledges that Torque and its licensors retain all worldwide right, title and interest in and to the Services, Services Content, and Documentation, including all rights in patents (including all applications therefor), trademarks, trade names, copyrights, trade secrets, know-how, data, and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP”). Partner will not do anything inconsistent with such ownership, including without limitation, challenging Torque’s ownership of its IP, challenging the validity of the licenses granted herein, or otherwise copying or exploiting Torque’s IP during or after the termination of this Agreement, except as specifically authorized herein. If Partner acquires any rights in Torque’s IP, by operation of law or otherwise, Partner will and hereby does, at no expense to Torque, immediately assign such rights to Torque.
4.1 Fees and Payment Terms. Partner will pay Torque the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in each Order Form. Unless otherwise specified in the Order Form, Partner will pay all amounts due within NET 30 days of the date of the applicable invoice. 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. Partner will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Torque in collecting any amount that is not paid when due. Amounts due from Partner under this Agreement may not be withheld or offset by Partner against amounts due to Partner for any reason. All amounts payable under this Agreement or any Order Form are denominated in United States dollars, and Partner will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Torque, Partner will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement or any Order Form. Partner will pay any additional taxes as are necessary to ensure that the net amounts received by Torque after all such taxes are paid are equal to the amounts that Torque would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5.1 Term. This Agreement will commence upon the Effective Date of the applicable Order Form and continue until such Order Form expires or is terminated in accordance with its terms or the terms of this Agreement. Unless otherwise agreed to in a subsequent Order Form, the Subscription Fee for any Renewal Term will be calculated based on Torque’s then-current rate card rates and Partner’s then-current number of Authorized Users.
5.2 Termination. This Agreement shall automatically terminate immediately upon termination or expiration of the Order Form. Either party may terminate the Order Form upon notice to the other party. In addition, a party may terminate the Order Form immediately on written notice to the other party if such other party breaches Section 2.6 or Section 9 of this Agreement. Torque may terminate the Order Form immediately upon written notice to Partner in the event that (a) Partner merges or is acquired, in whole or in part, by any third party, whether voluntarily or involuntarily, and/or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets, whether Partner is the surviving or disappearing entity), except as otherwise permitted herein; or (b) Partner has a receiver or similar party appointed for its property, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy. If Partner fails to timely pay any undisputed fees, Torque may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due. Except as expressly set forth herein, neither party may terminate this Agreement or the Order Form.
5.3 Post-Termination Obligations. Immediately upon the termination of the Order Form (a) all licenses granted herein shall terminate and Partner will immediately cease using the Services, Services Content, and Documentation; (b) any and all payment obligations of Partner under the Order Form will immediately become due; and (c) within thirty (30) calendar days after such termination, each party will return or destroy all Confidential Information received pursuant to the Order Form from the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement. There will be no refund of monthly fees pre-paid by Partner if the Order Form is terminated within such month. If Partner continues to use the Services after providing notice of termination, then Partner shall pay the fees associated with such use.
5.4 Survival. The parties’ obligations under Section 2.6, 3.3, 4, 5, 6.2, 8, 9 and 11 shall survive the termination or expiration of the Order Form.
6.1 Warranties. Each party represents and warrants to the other that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Partner further warrants that it is not barred from using the Services under the laws of its state of residence or any other applicable jurisdiction and that it has the right to upload the Partner Content to the Services.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 6.1, THE SERVICES, SERVICES CONTENT, AND DOCUMENTATION ARE PROVIDED SOLELY “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS. TORQUE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TORQUE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT. TORQUE DOES NOT WARRANT (a) AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES, (b) THAT THE SERVICES ARE VIRUS-FREE OR ERROR-FREE, OR (c) THAT OPERATION OF THE SERVICE WILL BE TIMELY, SECURE, OR UNINTERRUPTED. TORQUE DOES NOT WARRANT THAT THE SERVICES CONTENT OR any information PROVIDED THROUGH the SERVICES IS accuraTE OR COMPLETE OR THAT any SERVICES CONTENT OR information PROVIDED THROUGH the SERVICES WILL ALWAYS BE AVAILABLE. TORQUE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF PARTNER’S USE OF THE SERVICES, SERVICES CONTENT, OR DOCUMENTATION. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND PARTNER MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THE APPLICABLE ORDER FORM (UNLESS SUCH LAW PROVIDES OTHERWISE).
7.1 Claims Against Partner. Torque will defend, at its own expense, any claim, suit or action brought against Partner by a third party to the extent that such claim, suit or action arises from an allegation that the Services, Services Content, or Documentation infringes the intellectual property rights of such third party (“Partner Claim”), and Torque will indemnify and hold Partner harmless from and against liability incurred by Partner to the extent arising from such Partner Claim. If Torque receives prompt notice of a Partner Claim that, in Torque's reasonable opinion, is likely to result in an adverse ruling, then Torque may, at its discretion, (a) obtain a right for Partner to continue using the Services, Services Content, or Documentation at issue; (b) modify the Services, Services Content, or Documentation to make it non-infringing; (c) replace the Services, Services Content, or Documentation with a non-infringing version; or (d) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services, Services Content, or Documentation. Notwithstanding the foregoing, Torque will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (a) any use of the Services, Services Content, or Documentation not expressly permitted under this Agreement; (b) any use of the Services, Services Content, or Documentation in combination with products, equipment, software, or data not made available by Torque if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the Services, Services Content, or Documentation by any person other than Torque or its authorized agents or subcontractors. Torque will have no obligation under this Section or otherwise with respect to any claim based upon the use by Partner of the Services, Services Content, or Documentation to the extent such claim is not based on the Services, Services Content, or Documentation itself. This Section states Torque’s entire liability and Partner’s sole and exclusive remedy for all third party claims.
7.2 Claims Against Torque . Partner will defend, at its own expense, any claim, suit or action against Torque brought by a third party to the extent that such claim, suit or action arises from (a) Partner’s failure to comply with or violation of any applicable law or regulation, (b) Partner’s infringement of any third party’s IP right, (c) Partner’s use of the Services, Services Content, or Documentation other than expressly permitted by this Agreement, or (d) Partner’s products or services (each, a “Torque Claim”), and Partner will indemnify and hold Torque harmless from and against liability incurred by Torque to the extent arising from such Torque Claim.
7.3 Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (a) promptly notifying the other party in writing of such claim; (b) giving the other party sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at other party’s request and expense, assisting in such defense.
7.4 Exclusions. Neither party may make any public announcement of any claim, defense or settlement in connection with this Agreement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve such a claim without the consent of the indemnified party, if such settlement, compromise or resolution (a) causes or requires an admission or finding of guilt against the indemnified party, (b) imposes any monetary damages against the indemnified party, or (c) does not fully release the indemnified party from liability with respect to the claim.
8.1 Disclaimer of Indirect Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 OR MISSAPPROPRIATION OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, BUSINESS, DATA, GOODWILL, OR USE OF THE SERVICES, INTERRUPTION OF THE SERVICES, OR COST OF REPLACEMENT OF GOODS OR, EVEN IF SUCH DAMAGES WERE FORESEEABLE
8.2 Cap on Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 OR MISSAPPROPRIATION OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), EXCEED THE TOTAL AMOUNT PAID BY PARTNER TO TORQUE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM(S).
8.3 THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9.1 Confidential Information. When used in this Agreement, the term “Confidential Information” will mean information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement, whether such information is oral or written, that is either designated as confidential information by the Disclosing Party or, under the circumstances of the disclosure, is known or reasonably should be known by the Receiving Party to be confidential. Confidential Information includes information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information, as well as the terms and conditions of this Agreement.
9.2 Disclosure and Use Restrictions. Except as otherwise provided herein, each Receiving Party will: (a) secure and protect in confidence all Confidential Information of the Disclosing Party, using at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information of like kind, but in no case less than a reasonable degree of care; (b) use and disclose such Confidential Information only as necessary to perform its obligations and exercising its rights under this Agreement; and (c) disclose such Confidential Information within its organization only to those of its employees, agents or subcontractors who need to know it to perform the obligations or exercise the rights of the Receiving Party and have a legal duty to protect it at least as stringently as the Receiving Party does hereunder.
9.3 Legal Disclosures. Notwithstanding the restrictions of Section 9.2, it will not be a violation by either Party to disclose any information required to be disclosed by law or legal process; however, the Receiving Party will: (a) promptly notify the Disclosing Party of the disclosure request; and (b) at the Disclosing Party’s request, provide reasonable assistance in any effort by the Disclosing Party to prevent or limit such disclosure.
9.4 Exclusions. Notwithstanding any provision herein to the contrary, Confidential Information will not include information that: (a) was known by the Receiving Party at the time of receipt from the Disclosing Party and is not subject to any other non-disclosure obligations; (b) is, or hereafter becomes, generally known to the public through no fault of the Receiving Party; (c) was independently developed by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information; or (d) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information.
10.2 Use and Protection of Personal Data. To the extent that either party provides other party with any personal data of Consumers pursuant to this Agreement, the receiving party shall use such personal data in strict compliance with all applicable laws, including applicable data privacy and protection laws and regulations (“Privacy Laws”). Under Privacy Laws, both Torque and Partner are controllers of the personal data and each party shall process such personal data received from the other party solely in accordance with the requirements of such Privacy Laws.
10.3 Torque Obligations regarding Personal Data. Each party shall treat personal data received from the other party pursuant to this Agreement as Confidential Information and shall only process personal data on behalf of Partner (a) in accordance with this Agreement and the applicable Order Form; (b) in accordance with the documented (including via email) reasonable instructions of the Disclosing Party, where such instructions are consistent with the terms of this Agreement; and (c) as otherwise initiated by Consumers. Each party will implement and maintain technical and organizational safeguards designed to protect against unauthorized access to, or use, or disclosure of personal data received from the other party.
10.4 Consumer Requests. Each Receiving Party of personal data shall, to the extent legally permitted, promptly notify Disclosing Party if Receiving Party receives a request from a Consumer to exercise his or her rights as a data subject to access, download, rectify, erase, or restrict the processing of his or her personal data on the Services. The party who originally received the personal data at issue shall be solely and fully responsible for fulfilling any such requests by the data subject.
10.5 Security Breach. The Receiving Party will notify the Disclosing Party without undue delay upon discovery of any suspected or actual security or confidentiality breach or other compromise of personal data, describing the breach in reasonable detail, the status of any investigation or mitigation taken by the Receiving Party, and if applicable, the potential number of Consumers affected. Neither party will communicate with any third party regarding any security breach except as specified by other party or by the applicable law.
10.6 Subprocessors. Partner acknowledges and agrees that Torque and its affiliates may engage third-parties to subprocess personal data in connection with the provision of the Services, provided that such subprocessors are bound by obligations to protect personal data in a manner no less protective than those in this Agreement. A list of current sub-processor will be provided by Torque upon request.
11.1 Relationship. Each party will be and act as an independent contractor (and not as the agent or representative of the other party) in the performance of this Agreement.
11.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a Torque may assign this Agreement without the subscriber’s consent to an affiliate or a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law).
11.3 Subcontractors. Torque may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Torque remains responsible for all of its obligations under this Agreement and for the actions of such subcontractors.
11.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.
11.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including failure of the Internet, so long as that party uses commercially reasonable efforts to avoid or remove the causes of non-performance.
11.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules. The parties agree that neither the 1980 U.N. Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement.
11.7 Binding Arbitration and Class Action Waiver
(a) ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Partner agrees that such hearing shall be conducted in Austin. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) EACH PARTY AGREES THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. PARTNER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS, OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) If Torque implements any material change to this Section 11.7, such change shall not apply to any Claim for which Partner provided written notice to Torque before the implementation of the change.
11.8 Right to Preliminary and Injunctive Relief. Each party agrees that money damages would be an inadequate remedy in the event of a breach or threatened breach of the provisions in this Agreement protecting the other party’s intellectual property or Confidential Information, and that in the event of such a breach or threat, such other party, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting the other party from taking actions in breach of such provisions), without the need for posting bond, as well as specific performance as may be appropriate to preserve all of such other party’s rights.
11.9 Waiver. The waiver by either party of any claim for breach of any provision of this Agreement does not waive any other claims. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement 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 this Agreement.
11.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Partner’s right to use the Services will immediately terminate.
11.11 Counterparts. This Agreement may be executed via the Order Form and in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures
11.12 Entire Agreement. This Agreement, including all exhibits hereto and the Order Form that incorporates this Agreement, is the final and complete expression of the agreement between these parties regarding Partner’s use of the Services. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. To the extent of any conflict or inconsistency between the terms and conditions of an Order Form and the terms and conditions of this Agreement, the terms and conditions of the Order Form shall prevail to the extent of the conflict or inconsistency (with respect to such Order Form only). No employee, agent, or other representative of Torque has any authority to bind Torque with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Torque will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Partner in any receipt, acceptance, confirmation, purchase order, correspondence, or otherwise, unless Torque specifically agrees to such provision in writing and signed by an authorized agent of Torque .