TERMS AND CONDITIONS
RECORDLINKER
TERMS OF SERVICE
1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 "Access Protocols" means the passwords, access codes, technical specifications, network addresses, URL links, connectivity standards or security protocols, or other relevant procedures, as reasonably required to allow Customer or any Authorized Users to access the RecordLinker Offerings.
1.2 "Agreement" means, the Terms of Service, the DPA, and any Orders executed by RecordLinker and Customer.
1.3 "Applicable Data Protection Laws" means any applicable U.S. federal and state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of personal data.
1.4 "Authorized User" means each of Customer's employees, agents, and independent contractors as authorized by Customer to access the RecordLinker Offering pursuant to Customer's rights under this Agreement.
1.5 "Column Mapping" means the defined relationship between a specific column in the input data table (for example, 'carrier_name' in a database table, spreadsheet, or comma-separated values file) and the corresponding column in the destination table (for example, 'CompanyLegalName') or Customer's Core System, together with any associated transformation rule(s) governing the transfer of values from the input column to the destination column (for example, "trim input value to 10 characters", "remove leading and trailing spaces", "concatenate 'first name', ' ', 'last name'"), as stored within the RecordLinker platform.
1.6 "Core System" means any third-party system of record, platform, application, or database environment owned or controlled by Customer or its vendor that Customer integrates or uses in connection with the Services, including any AMS (Agency Management System) such as Applied Epic or Vertafore AMS360, and any successor, replacement, or upgraded versions thereof.
1.7 "Customer Content" means any content, information or data provided or submitted to RecordLinker, or uploaded to the RecordLinker Offerings, by, or on behalf of, Customer or its Authorized Users in connection with their use of the Services.
1.8 "Data Processing Addendum" or "DPA" means the data processing addendum available at https://recordlinker.com/dpa/, or such other online location designated by RecordLinker.
1.9 "Data Transformation" means the processing performed by the RecordLinker Offering to apply one or more Column Mappings (including any associated transformation rule(s)) to Customer's Input Record in order to produce the transformed RecordLinker Output for loading into the destination table or Customer's Core System.
1.10 "Golden Record" means a data record supplied by Customer and originating from the Customer's Core System, when that Core System is designated as a destination Core System for data conversions.
1.11 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.12 "Input Record" means a data record supplied by Customer and originating from Customer's Core Systems.
1.13 "Linkage" means a defined association between an Input Record (e.g., "Gen Liab") and a corresponding Golden Record (e.g., "General Liability"), as stored within the RecordLinker Offering.
1.14 "Order" means an electronic or other written service order, statement of work, addendum, or other document for ordering Services signed by both parties which references the Terms of Service.
1.15 "Personal Information" means any Customer Content that identifies or is identifiable to a natural person and that constitutes "personal data," "personal information," or "personally identifiable information" or similar information governed by Applicable Data Protection Laws; except that Personal Data does not include such information pertaining to Customer's business contacts who are Customer personnel where RecordLinker acts as a controller of such information.
1.16 "Processing" (including "Process", "Processes", "Processed", and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
1.17 "Professional Services" means professional services provided by RecordLinker to Customer as described in any Order, which may include services relating to implementation or configuration of the RecordLinker Offerings.
1.18 "RecordLinker Cognition" means the RecordLinker Offering that is a Customer configured, user interface and machine learning powered conversion platform that takes in Input database backups, excel, or CSV files, and generates the Core System's import files or, where available, pushes transformed data directly into the Core System via API, as per the column mapping and their transformations configured by the Customer.
1.19 "RecordLinker Cognition Conversion Credit" means a pre-paid unit of consumption that may be applied toward Customer's use of the RecordLinker Cognition service for conversion transactions (or other units of conversion usage as specified in an applicable Order). For clarity, a single conversion transaction may require the use of more than one (1) Conversion Credit, as determined by the applicable Order or usage parameters for the RecordLinker Cognition offering. Conversion Credits are sold and invoiced in advance, are non-refundable, and may be used only by Customer for Customer's internal business purposes. Unless otherwise specified in an Order, each Conversion Credit expires six (6) years after the date of purchase (the "Expiration Date") and any unused Conversion Credits remaining after the Expiration Date will automatically lapse and be forfeited without refund or credit. Customer may use Conversion Credits only while Customer maintains an active, paid-up subscription to "RecordLinker Cognition" (or any successor subscription offering identified in an Order); accordingly, RecordLinker will have no obligation to apply or honor Conversion Credits during any period in which Customer's subscription is expired, suspended, or terminated.
1.20 "RecordLinker Enterprise" means the RecordLinker Offering that enables companies to manage their Core Systems. Enterprise includes Golden Record Data Quality Diagnostics, Carrier name/ownership research, Core System Enterprise Administration via Core Systems API (subject to the Core System's API capabilities).
1.21 "RecordLinker ML Core" means the RecordLinker Offering that provides a user interface and machine learning powered platform for record-linking to Golden Records, including import and export of source records and Linkage results, and, where supported by the Core System, integration of those Linkage results with the Core System's platform.
1.22 "RecordLinker Offering" means RecordLinker Enterprise, RecordLinker ML Core, RecordLinker RecordLinker Cognition, or other products and services made available by RecordLinker and provided to Customer pursuant to an Order.
1.23 "RecordLinker Output" means any reports, documents, tables, compilations, results, analyses, or other works of authorship, including Linkages and Column Mappings, that are generated by the RecordLinker Offerings.
1.24 "Services" means any services provided by RecordLinker to Customer under this Agreement as set forth in an Order, including, but not limited to, provision of the RecordLinker Offerings and Professional Services.
1.25 "Terms of Service" mean those terms and conditions available at https://recordlinker.com/terms, or such other online location designated by RecordLinker.
2. PROVISION OF SERVICES; OWNERSHIP
2.1 Services Ordered. RecordLinker agrees to provide Customer with the Services as set forth in each Order, subject to the terms and conditions of the Order(s) and this Agreement.
2.2 License and Access. Subject to the terms and conditions of this Agreement, RecordLinker grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 10.5) right and license during the Term (as defined below), to access and use the RecordLinker Offering(s) solely for Customer's internal business purposes. On or as soon as reasonably practicable after the execution of the applicable Order, RecordLinker will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the applicable RecordLinker Offerings. Subject to the limitations set forth in each Order, Customer may permit any Authorized Users to access and use the features and functions of the RecordLinker Offering(s) as contemplated by this Agreement. Customer is responsible for all use of the RecordLinker Offerings occurring under Customer's account, whether by Authorized Users or otherwise, and for compliance with this Agreement by all persons accessing the RecordLinker Offerings through Customer's Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the RecordLinker Offering(s), and notify RecordLinker promptly of any such unauthorized use known to Customer. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the RecordLinker Offering(s), and notify RecordLinker promptly of any such unauthorized use or suspected unauthorized use known to Customer.
2.3 License to RecordLinker Output. Subject to the terms and conditions of this Agreement, RecordLinker grants Customer a perpetual, royalty-free, worldwide, fully-paid, nonexclusive, non-sublicensable, non-transferable (except as permitted under Section 10.5), non-sublicensable license to use the RecordLinker Output solely for Customer's internal business purposes. Customer shall not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of RecordLinker or its licensors on any RecordLinker Output or any copies thereof. Nothing herein shall alter or impair Customer's rights or interests in Customer Content.
2.4 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the RecordLinker Offerings, except as expressly permitted herein; (b) modify, copy, adapt, alter, translate, or create derivative works of the RecordLinker Offerings; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the RecordLinker Offerings for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the RecordLinker Offerings, except to the extent such actions by law are not permitted to be restricted; (e) interfere in any manner with the operation of the RecordLinker Offerings or the hardware and network used to operate the RecordLinker Offerings; (f) access or use the RecordLinker Offerings to build a similar or competitive product or service; (g) attempt to access the RecordLinker Offerings through any interface not authorized by RecordLinker; or (h) otherwise use the RecordLinker Offerings in any manner inconsistent with applicable law or this Agreement.
2.5 Suspension. RecordLinker may suspend Customer's access to the RecordLinker Offerings if Customer's use of the RecordLinker Offerings: (a) poses a security risk to the RecordLinker Offerings or any third party; (b) could adversely impact the RecordLinker Offerings, systems, or data of RecordLinker or any third party; or (c) violates applicable law. RecordLinker will use commercially reasonable efforts to provide notice and an opportunity to cure prior to termination where practicable. When reasonably practicable and lawfully permitted, RecordLinker will provide Customer with advance notice of any such suspension. RecordLinker will use reasonable efforts to re-establish Customer's access to the RecordLinker Offerings promptly after it determines that the issue causing the suspension has been resolved.
2.6 Ownership. As between the parties, RecordLinker owns, and shall retain, all right, title, and interest, including all Intellectual Property Rights in and to the Services, including the RecordLinker Offerings and all software (including source code), algorithms, designs, methods and processes, artificial intelligence language models, data structures, models and schema, systems, and RecordLinker Output (excluding Customer Content) (collectively, "RecordLinker IP"). All rights in and to the RecordLinker IP not expressly granted to Customer in this Agreement are reserved by RecordLinker. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the RecordLinker IP or any part thereof.
2.7 Feedback. Customer hereby grants to RecordLinker a perpetual, royalty-free, worldwide, fully-paid, nonexclusive, transferable, sublicensable, license to use any suggestions, enhancement requests, recommendations or other feedback regarding the Services provided by Customer or any Authorized Users.
3. TERM AND TERMINATION
3.1 Term. This Agreement will begin on the effective date of the initial Order and continue in full force and effect as long as any Order remains in effect, unless earlier terminated in accordance with the terms of the Agreement (the "Term"). Unless otherwise stated in the applicable Order, the term of each Order will begin on the effective date of the Order and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the terms of the Agreement. Thereafter, each Order will automatically renew for additional terms of one (1) year each unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current Order term.
3.2 Termination for Breach. Either party may terminate this Agreement in its entirety upon written notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
3.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will terminate; (b) Customer and all Authorized Users shall cease to access the RecordLinker Offerings; (c) all Access Protocols of Authorized Users will be disabled by RecordLinker; (d) each party will comply with the obligations to return or destroy all Confidential Information of the other party, as set forth in Section 6; and (e) any amounts owed to RecordLinker under this Agreement will become immediately due and payable. Sections 1, 2.3, 2.4, 2.6, 2.7, 3.3, 4, 5.2, 5.3, 6, 7.2, 7.3 and 8 through 10 will survive expiration or termination of this Agreement for any reason.
4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. Customer shall pay all fees for Services as set forth in each Order ("Fees"). Fees shall be invoiced annually in advance, unless otherwise specified in the applicable Order. The initial invoice for a new Order shall be issued on the effective date of the applicable Order. For any renewal term, RecordLinker may issue the renewal invoice prior to the commencement of the applicable renewal Order term. Invoices issued for an initial Order term shall be due and payable within thirty (30) days from the invoice date. Invoices issued at least thirty (30) days in advance of a renewal term shall be due and payable no later than the first day of the applicable renewal term. All amounts shall be denominated and payable in U.S. dollars. All Orders are non-cancellable and all Fees are non-refundable. The term specified in each Order constitutes a continuous and non‑divisible commitment for the full duration of the applicable Order term, regardless of any invoice schedule. If any Fees are more than thirty (30) days overdue, then RecordLinker, upon written notice to Customer (and without prejudice to any other rights or remedies RecordLinker may have), may discontinue any and all Services and suspend Authorized Users' and Customer's access to the RecordLinker Offerings, until such amounts are paid in full. Customer will provide and maintain with RecordLinker complete, accurate and up-to-date Customer billing and contact information at all times throughout the Term.
4.2 Expenses. RecordLinker will be reimbursed only for expenses that are expressly provided for in an Order or that have been approved in advance in writing by Customer, provided RecordLinker has furnished such documentation for authorized expenses as Customer may reasonably request.
4.3 Taxes. Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on RecordLinker's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the RecordLinker Offerings to Customer. Customer will make all payments of Fees to RecordLinker free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to RecordLinker will be Customer's sole responsibility, and Customer will provide RecordLinker with official receipts issued by the appropriate taxing authority, or such other evidence as the RecordLinker may reasonably request, to establish that such taxes have been paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES
5.1 Use of Customer Content. The Customer Content, and all Intellectual Property Rights in it, is the exclusive property of Customer. Customer hereby grants RecordLinker a non-exclusive, worldwide, royalty-free and fully paid license: (a) during the Term, to use the Customer Content as necessary for purposes of providing, supporting and improving the Services for Customer, (b) during the Term, to use Customer trademarks, service marks, and logos in such form as Customer may direct as required to provide the Services to Customer, (c) during the Term, to use Customer's name and logos solely to identify Customer as a RecordLinker client on RecordLinker's website and in customer lists and similar marketing materials and (d) during and after the Term, to use Customer Linkages and Column Mappings in aggregated and anonymized form only, to improve the Services and RecordLinker's products and services and generate and disclose statistics regarding use of the Services; provided, however, that the identity of Customer, its Authorized Users, its clients, and counterparties shall not be disclosed to third parties, or publicly, in connection with any such statistics without Customer's prior written consent. All rights in and to the Customer Content not expressly granted to RecordLinker in this Agreement are reserved by Customer.
5.2 ML Core Opt-In. If Customer affirmatively elects, pursuant to an Order, to use RecordLinker ML Core, then RecordLinker may use Customer Linkages in anonymized form to train and improve RecordLinker's machine learning models for the purpose of providing ML‑powered input record‑linking services to Customer and to other customers that have elected to use such machine learning powered services. Any such training data shall not contain the names or identities of Customer's clients.
5.3 Cognition Opt-In. If Customer affirmatively elects, pursuant to an Order, to use RecordLinker Cognition offering, then RecordLinker may use Customer Column Mappings and Data Transformation rules in anonymized form to train and improve RecordLinker's machine learning models for the purpose of providing ML‑powered column‑mapping and data‑transformation services to Customer and to other customers that have elected to use such services. Any such training data shall not contain the names or identities of Customer's clients.
5.4 Customer Warranties. Customer represents and warrants that it has all rights, licenses, consents and permissions necessary for RecordLinker to receive, Process and use the Customer Content pursuant to this Agreement and each Order. Customer represents and warrants that no Customer Content submitted to or transmitted through RecordLinker shall (a) infringe upon or misappropriate any third-party Intellectual Property Right; (b) be fraudulent, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes that could be expected to damage or disrupt the RecordLinker Offerings, RecordLinker's system or any data maintained by RecordLinker; or (d) otherwise violate the rights of a third party.
5.5 Customer Access Rights and Responsibilities. Throughout the Term, Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the RecordLinker Offering(s). RecordLinker is not intended to be and shall not be used by Customer as the primary source of Customer Content or a back-up solution for Customer Content. Customer will have the ability to export Customer Content out of the RecordLinker Offering(s) and is responsible for maintaining its own primary and back-up copies of all Customer Content. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and for Customer's use of and reliance on RecordLinker Output in Customer's discretion.
5.6 Data Transformations – Shared Responsibility. RecordLinker will implement Data Transformations using reasonable skill and care and consistent with the Column Mappings provided by the Customer. Customer retains sole responsibility for reviewing, editing, and approving the applicable Column Mappings and associated Data Transformation rules, and for reviewing, testing, and validating transformation outputs, to ensure they are accurate, complete, and suitable for Customer's intended business use. Customer acknowledges that RecordLinker does not control Customer's source data, Core System configuration, or downstream processes; accordingly, RecordLinker is not responsible for errors arising from (a) inaccurate or incomplete source data, (b) Customer's review, edits, approvals, or other direction regarding Column Mappings, transformation rules (including where RecordLinker initially provided recommended or prebuilt Column Mappings), (c) changes to Customer systems, configurations, or requirements, or (d) Customer's failure to timely review, test, and approve the outputs of any Data Transformations.
6. CONFIDENTIALITY AND DATA
6.1 Confidential Information. "Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally or in written or digital media, that is identified as "confidential" or with a similar legend at the time of such disclosure or that the receiving party (the "Receiving Party") knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services and all enhancements and improvements thereto will be considered Confidential Information of RecordLinker. Customer Content will be considered Confidential Information of Customer.
6.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. Notwithstanding the foregoing, aggregated and anonymized data derived from Customer's use of the RecordLinker Offerings may be retained by RecordLinker for use in accordance with Section 5.1. Each Receiving Party also may retain any information in system backups and legal or archival records maintained in the normal course, until such time that the Receiving Party normally destroys such backups and records, subject to the Receiving Party's continuing performance of its nondisclosure obligations with respect to any Confidential Information so retained.
6.3 Exceptions. The confidentiality obligations set forth in Section 6.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
6.4 Data Security. During the Term, RecordLinker will maintain physical, administrative and technical security measures reasonably designed to maintain the availability, integrity and confidentiality of Customer Content and will periodically archive and back-up Customer Content in accordance with RecordLinker's applicable disaster recovery and business continuity procedures and industry standards. Each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. RecordLinker shall Process any Personal Data included in the Customer Content pursuant to Data Processing Addendum.
7. RECORDLINKER WARRANTIES AND DISCLAIMERS
7.1 Limited Warranties.
(a) RecordLinker represents and warrants during the Term that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards.
(b) Subject to the terms and conditions of this Agreement, RecordLinker will use commercially reasonable efforts during the Term to operate and provide the RecordLinker Offerings so as to maintain 98.5% uptime during each calendar quarter of the Term, excluding regularly scheduled maintenance times. Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated by email to Customer or by notice posted on the RecordLinker Offerings interface at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically will be scheduled to occur at night on the weekend, and to last less than 10-15 hours each quarter. RecordLinker hereby provides notice that every Saturday 7am to 11am Eastern Time is reserved for routine scheduled maintenance for use as needed. RecordLinker in its sole discretion may take the RecordLinker Offering offline for unscheduled maintenance and in that event will attempt to notify Customer in advance. Such unscheduled maintenance will be counted against the uptime guarantee. If in any calendar quarter during the Term the foregoing uptime commitment is not met by RecordLinker for any reason other than a force majeure event or Customer's acts or omissions, and Customer was negatively impacted (i.e., attempted to log into or access the RecordLinker Offering and failed due to the unscheduled downtime of the RecordLinker Offering), RecordLinker shall provide, as the sole and exclusive remedy, a service credit equal to 15% of one month's Fee for the use of the impacted RecordLinker Offering. In order to receive a credit under this service level commitment, Customer must notify RecordLinker in writing of a failure to meet the uptime commitment by emailing RecordLinker at billing@RecordLinker.com ("SLA Notice"), within thirty (30) days after Customer learns, or with reasonable efforts should have learned, of the alleged service level commitment failure. Following receipt of an SLA Notice, RecordLinker shall investigate Customer's claim and promptly notify Customer in writing of any applicable credit or if RecordLinker's system logs or other records do not support Customer's claim.
7.2 Disclaimer. THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services, INCLUDING THE RECORDLINKER OFFERINGS, ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND RECORDLINKER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES OR REPRESENTATIONS regarding the services, RecordLinker offerings, RecordLinker output or RecordLinker IP, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF DATA ACCURACY or reliability, SYSTEM INTEROPERABILITY, AVAILABILITY, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RECORDLINKER DOES NOT WARRANT THAT THE SERVICES, RECORDLINKER OFFERINGS, RecordLinker output or RecordLinker IP WILL BE provided without interruption or will be ERROR-FREE.
7.3 Insurance Disclaimer. RECORDLINKER IS NOT AN INSURANCE BROKER, AGENT, UNDERWRITER OR SIMILAR PROVIDER OF INSURANCE OR RISK PRODUCTS OR SERVICES. RECORDLINKER DOES NOT PROCESS INSURANCE APPLICATIONS, PROVIDE ADVICE OR RECOMMENDATIONS, ISSUE INSURANCE POLICIES OR MAKE COVERAGE DETERMINATIONS. RECORDLINKER PROVIDES TECHNOLOGY, ADMINISTRATIVE AND DATA SERVICES ONLY. RECORDLINKER EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY CONTENT, PRODUCTS, OR SERVICES FURNISHED BY ANY THIRD PARTIES, AND CUSTOMER AGREES THAT RECORDLINKER SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING FROM ANY DEALINGS OR COMMUNICATIONS BETWEEN CUSTOMER AND ANY THIRD PARTY OR BASED ON CUSTOMER'S RELIANCE ON THIRD-PARTY DATA PROCESSED OR TRANSMITTED THROUGH THE SERVICES.
8. INDEMNIFICATION
8.1 By RecordLinker. RecordLinker will defend, indemnify and hold harmless Customer from and against any and all liabilities, damages, costs or expenses (including reasonable attorneys' fees) (collectively, "Costs") arising from or in connection with any third-party claim (a "Claim") alleging that any RecordLinker Offering infringes a third party's patent, copyright or trademark under applicable laws of any jurisdiction within the United States of America. If any portion of an RecordLinker Offering becomes, or in RecordLinker's opinion is likely to become, the subject of a Claim of infringement, RecordLinker may, at RecordLinker's option: (a) procure for Customer the right to continue using the RecordLinker Offering; (b) replace the RecordLinker Offering with non-infringing software or services which do not materially impair the functionality of the RecordLinker Offering; (c) modify the RecordLinker Offering so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the RecordLinker Offering. Notwithstanding the foregoing, RecordLinker will have no obligation under this Section 8.1 or otherwise to the extent any infringement claim is based upon (a) use of any RecordLinker Offering not in accordance with this Agreement; (b) use of any products, software or data not supplied by RecordLinker; or (c) modification of any RecordLinker Offering by any person other than RecordLinker or its authorized agents (collectively, the "Excluded Uses"). This Section 8.1 states the sole and exclusive remedy of Customer and the entire liability of RecordLinker, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
8.2 By Customer. Customer will defend, indemnify and hold harmless RecordLinker from and against all Costs arising from or in connection with any Claim based on (a) Customer's use of Customer Content or RecordLinker Output (except to the extent such use gives rise to a Claim indemnified by RecordLinker under Section 8.1), (b) Customer's breach of Section 5.2, or (c) any Excluded Use.
8.3 Procedure. In the event of any Claim for which indemnification may be sought by a party: (a) the indemnified party will promptly notify the indemnifying party in writing of such Claim; (b) the indemnifying party will have sole control of the defense or settlement of the Claim, provided that any settlement that imposes monetary or injunctive obligations on the indemnified party shall be subject to the indemnified party's approval; and (c) the indemnified party will cooperate reasonably with the indemnifying party in connection with the settlement and defense of the Claim.
9. LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO RECORDLINKER DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RecordLinker'S SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS SECTION 9 WILL LIMIT OR EXCLUDE (A) CUSTOMER's LIABILITY TO RECORDLINKER FOR FEES BECOMING DUE AND PAYABLE UNDER EACH ORDER, OR (B) EITHER PARTY'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS, OR FOR DEATH OR PERSONAL INJURY.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. MISCELLANEOUS
10.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of New York, New York, and the parties hereby consent to the personal jurisdiction of these courts.
10.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from RecordLinker, or any products utilizing such data, in violation of the United States export laws or regulations.
10.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
10.6 Force Majeure. Neither party will be liable for any delay or failure in performing its obligations under this Agreement (except for Customer's payment obligations) to the extent such delay or failure is caused by circumstances beyond its reasonable control, including without limitation: third-party network, telecommunications or power outage, labor dispute, shortage of materials, war, terrorist attack, pandemic, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.7 Change of Control and Use of Services. (a) Customer-to-Customer Consolidation. If Customer acquires, is acquired by, merges with, or otherwise becomes under common control with an entity that is also a customer of RecordLinker, each such entity will continue to be treated as a separate "Customer" under its respective agreement(s) with RecordLinker. No consolidation, merger, or acquisition will entitle the combined organization to reduced Fees, consolidated pricing, or shared usage rights under this Agreement. Any combined or expanded use of the Services by the consolidated organization requires shall be addressed in an amended Order with revised pricing to be negotiated between the parties based on the expanded scope, scale, or usage. (b) Customer Acquired by Non-Customer. If Customer is acquired by, merges with, or otherwise becomes under common control with an entity that is not already a customer of RecordLinker, then only the pre‑acquisition Customer entity (as it existed prior to the transaction) may continue to use the Services under this Agreement. Any use of the Services by the acquiring, parent, successor, or affiliated entity, or for other business other than the pre‑acquisition Customer entity (as it existed prior to the transaction) shall require a separate purchase order or amended Order to extend the Services to the combined organization and may result in adjusted pricing to reflect the expanded scope of use. For the avoidance of doubt, any assignment or change of control permitted under Section 10.6 does not expand or consolidate usage rights, entitle any entity to reduced Fees, or modify usage limits, except as expressly set forth in an amended Order executed by RecordLinker.
10.8 Independent Contractors. RecordLinker's relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other.
10.9 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to RecordLinker, by emailing billing@RecordLinker.com and if to Customer by emailing the Customer Point of Contact email address listed on the applicable Order, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
10.10 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, proposals, or communications, whether written or oral. RecordLinker may update the Terms of Service and DPA from time to time. The most current version of the the Terms of Service and DPA, as made available at the applicable online location, shall apply to and be incorporated into this Agreement. Customer's continued use of the Services following the effective date of any such update constitutes acceptance of the updated terms. In the event of a conflict among the components of the Agreement, the following order of precedence applies: (a) Orders; (b) the Data Processing Addendum; and (c) Terms of Service.