TERMS AND CONDITIONS

These Terms and Conditions (the “Terms and Conditions”) are between RecordLinker Inc., a Dela­ware corporation (“RecordLinker“) and the individual or entity that has executed the order that incorporates these Terms and Conditions or is accessing the Services (as defined below) (“Customer”) and takes effect on the Effective Date (as defined below). By accessing or using the Services, or by signing these Terms and Conditions, including accepting them electronically, the parties agree as follows.

1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are used.

1.1   “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the RecordLinker Offering.

1.2   “Agreement” means the collective Terms and Conditions, DPA, Order Form, and SOW (if applicable), and all documents referred to in the Terms and Conditions which set out the rights and obligations of the parties.

1.3   “Applicable Data Protection Laws” means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data. Applicable Data Protection Laws include, where applicable, the California Consumer Privacy Act Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”).

1.4   “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the RecordLinker Offering pursuant to Customer’s rights under this Agreement.

1.5   “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.

1.6   “Data Source” means a logical data storage structure consisting of tables, views, sequences, etc. for the original (also known as ‘system of record’) records that are to be normalized using a RecordLinker Offering as further outlined in the applicable Order Form.

1.7   “Documentation” means the technical materials provided by RecordLinker to Customer in hard copy or electronic form describing the use and operation of the RecordLinker Offering.

1.8   “Effective Date” means the earlier of (a) the date when Customer first accesses or uses the Services or (b) the date when Customer signs or otherwise accepts an Order Form that incorporates these Terms and Conditions, or as otherwise specified in the applicable Order Form.

1.9   “Error” means a reproducible failure of the RecordLinker Offering to substantially conform to the Documentation.

1.10   “Error Corrections” means bug fixes or workarounds intended to correct Errors in the RecordLinker Offering.

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   “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.

1.13   “Order Form” means an order, quote, purchase document, invoice, or other document that is generated by RecordLinker and executed or accepted by Customer, including electronically, describing the Service and any additional terms agreed to by the parties. 

1.14   “Personal Data” means any Customer Content that identifies or is identifiable to a natural person 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.

1.15   “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.

1.16   “Professional Services” means professional services provided by RecordLinker to Customer as may be described in any applicable Order Form (as may be further elaborated in any statement of work), which may include services relating to implementation and/or configuration of the RecordLinker Offerings.

1.17   “RecordLinker Offering(s)” means the RecordLinker software-as-a-service application and related modules ordered pursuant to one (1) or more Order Forms comprising a unified platform that creates and manages records in a data set that refer to the same entity across different Data Sources.

1.18   “Services” means any services provided by RecordLinker to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the RecordLinker Offerings and Professional Services.

1.19   “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by RecordLinker as required for use of the RecordLinker Offerings. The current requirements are described in the Documentation.

2. PROVISION OF SERVICES

2.1   Access. Subject to Customer’s payment of the fees set forth in the applicable Order Form (“Fee(s)”), RecordLinker will provide Customer with access to the RecordLinker Offering(s) ordered under such Order Form. On or as soon as reasonably practicable after the execution of the initial Order Form, RecordLinker will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the RecordLinker Offering in accordance with the 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.

2.2   Support Services. Subject to the terms and conditions of this Agreement, RecordLinker will (a) exercise commercially reasonable efforts to provide support for the use of the RecordLinker Offerings to Customer, and (b) keep the RecordLinker Offerings operational and available to Customer, in each case in accordance with its standard policies and procedures and the following service level commitment:

(a)    Service Level Commitment. RecordLinker commits to provide 99.5% uptime with respect to the RecordLinker Offering during each calendar quarter of the Term, excluding regularly scheduled maintenance times. If in any calendar quarter this uptime commitment is not met by RecordLinker 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 RecordLinker Offering. Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. RecordLinker hereby provides notice that every Saturday night 11pm – 4am Pacific Standard Time is reserved for routine scheduled maintenance for use as needed. RecordLinker in its sole discretion may take the RecordLinker Offering down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee. 

(b)    Credit Request. 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’ ‘at’ ‘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 calculate any service level downtime using RecordLinker’s system logs and other records and issue any required service credit in the event such downtime is below the Service Level Commitment pursuant to Section 2.2(a) above. If Customer wishes to dispute a denial of a service credit, the parties shall attempt to reach a mutually agreeable resolution to the dispute through discussions, and if the parties are unable to resolve the dispute within sixty (60) calendar days, the dispute shall be brought to mediation conducted by a single mediator selected by the parties and in accordance with the rules and procedures that such mediator determines following consultation with the parties. Customers who are past due or in default with respect to any payment or any material contractual obligations to RecordLinker are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to two years from the quarter for which the credit was issued.

(c)     Updates/Notice. This Service Level Commitment may be amended by RecordLinker in its sole discretion but only after providing thirty (30) days advance notice. Notices will be sufficient if provided by email to the Customer email address designated on the Cover Page of this Agreement.

2.3   Hosting. RecordLinker will, at its own expense, provide for the hosting of the RecordLinker Offerings, provided that nothing herein will be construed to require RecordLinker to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the RecordLinker Offerings from the Internet. Customer will be solely responsible for ensuring that it maintains the Supported Environment necessary for the operation of the RecordLinker Offerings.

3. INTELLECTUAL PROPERTY

3.1   License Grant. Subject to the terms and conditions of this Agreement, RecordLinker grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5) license during the Term (as defined below), solely within the Supported Environment, for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the applicable Order Form, (a) to access and use the RecordLinker Offering(s) and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the RecordLinker Offering(s). Customer may permit any Authorized Users to access and use the features and functions of the RecordLinker Offering(s) as contemplated by this Agreement.

3.2   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, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the RecordLinker Offerings, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the RecordLinker Offerings or Documentation 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 as permitted by law; (e) interfere in any manner with the operation of the RecordLinker Offerings or the hardware and network used to operate the RecordLinker Offerings; (f) modify, copy or make derivative works based on any part of the RecordLinker Offerings or Documentation; (g) access or use the RecordLinker Offerings to build a similar or competitive product or service; (h) attempt to access the RecordLinker Offerings through any unapproved interface; or (i) otherwise use the RecordLinker Offerings, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the RecordLinker Offerings will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of RecordLinker or its licensors on the Licensed Material or any copies thereof.

3.3   Ownership. All Services, including the RecordLinker Offerings, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of RecordLinker and its suppliers. All rights in and to the RecordLinker Offerings and Documentation not expressly granted to Customer in this Agreement are reserved by RecordLinker and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the RecordLinker Offering, Documentation, or any part thereof.

3.4   License to Licensed Material.  Subject to the terms and conditions of this Agreement, RecordLinker grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.

3.5   Open Source Software. Certain items of software may be provided to Customer with the RecordLinker Offerings and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 11. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, RecordLinker makes such Open Source Software, and RecordLinker’s modifications to that Open Source Software, available by written request at the notice address specified below.

3.6   Feedback. Customer hereby grants to RecordLinker a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. RecordLinker will not identify Customer as the source of any such feedback.

4. FEES AND EXPENSES; PAYMENTS

4.1   Fees. In consideration for the access rights granted to Customer and the Services performed by RecordLinker under this Agreement, Customer will pay to RecordLinker the Fees. Except as otherwise provided in the Order Form, all Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. RecordLinker reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. RecordLinker will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW 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.  RecordLinker reserves the right (in addition to any other rights or remedies RecordLinker may have) to discontinue the RecordLinker Offerings and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.

4.2   Taxes. The 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.

4.3   Interest. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

5. CUSTOMER CONTENT AND RESPONSIBILITIES

5.1   License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.  Customer will obtain all third-party licenses, consents and permissions needed for RecordLinker to use the Customer Content to provide the Services.  Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for RecordLinker to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer 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 and improving the Services, (b) during the Term, to use the Customer trademarks, service marks, and logos as required to provide the Services, and (c) during and after the Term, to use the Customer Content in an aggregated and anonymized form to: (i) improve the Services and RecordLinker’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to RecordLinker in this Agreement are reserved by Customer. Customer hereby grants RecordLinker a nonexclusive, unrestricted, worldwide, perpetual, irrevocable, fully paid‑up, royalty free license, with the right to sublicense and authorize the granting of sublicenses, to make, have made, use, import, copy, modify, make derivative works of, offer to sell, sell, lease and otherwise distribute anonymized and aggregated Record Linkage (as defined in the applicable Order Form) solely for the purpose of retaining the original record and the canonical record value for RecordLinker’s ongoing business purposes and all Intellectual Property Rights with respect thereto.

5.2   Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage RecordLinker’s system or data; and (e) otherwise violate the rights of a third party. RecordLinker is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the RecordLinker Offerings contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the RecordLinker Offerings.

5.3   Customer Responsibility for Data and Security. 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). Customer will have the ability to export Customer Content out of the RecordLinker Offering(s) and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.

6. PROFESSIONAL SERVICES. Where the parties have agreed to RecordLinker’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”).  The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. 
7. DATA SECURITY; PRIVACY

7.1   Data Security. RecordLinker shall maintain reasonable data safeguards and procedures designed to prevent the authorized use or disclosure of Personal Data as required under Applicable Data Protection Laws (“Data Safeguards”). During the Term, RecordLinker will maintain physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data. RecordLinker will periodically archive and back-up of Personal Data in accordance with RecordLinker’s applicable disaster recovery and business continuity procedures and industry standards.

7.2   Privacy. Without limiting Customer’s obligations under Sections 2 (Provision of Services), 5.1 (License; Ownership), and 8.1 (Limited Warranty), 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.

7.3   Data Processing Agreement. Before providing to RecordLinker or enabling RecordLinker to Process any Personal Data that is subject to Applicable Data Protection Laws, Customer agrees to and accepts the Data Processing Addendum (“DPA”) located at https://www.recordlinker.com/dpa as may be amended from time to time, which is incorporated herein for reference. Any Personal Data that is subject to Applicable Data Protection Laws shall be governed by the DPA and shall not be Confidential Information (defined herein).

8. WARRANTIES AND DISCLAIMERS

8.1   Limited Warranty. RecordLinker represents and warrants 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. Provided that Customer notifies RecordLinker in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, RecordLinker will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at RecordLinker’s option, refund the fees paid by Customer for the Services which gave rise to the breach. RecordLinker further warrants to Customer that the RecordLinker Offerings will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the RecordLinker Offerings not in accordance with this Agreement or as specified in the Documentation; (b) any use of the RecordLinker Offerings in combination with other products, equipment, software or data not supplied by RecordLinker; or (c) any modification of the RecordLinker Offerings by any person other than RecordLinker or its authorized agents. Provided that Customer notifies RecordLinker in writing of any breach of the foregoing warranty during the Term, RecordLinker will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.2.

8.2   Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND RECORDLINKER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RECORDLINKER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE RECORDLINKER OFFERINGS WILL BE UNINTERRUPTED OR ERROR-FREE.

8.3   Insurance Disclaimer. RECORDLINKER IS NOT AN INSURANCE BROKER, AGENT, UNDERWRITER OR SIMILAR PROVIDER OF PRODUCTS OR SERVICES. RECORDLINKER DOES NOT PROCESS INSURANCE APPLICATIONS, PROVIDE ADVICE OR RECOMMENDATIONS, ISSUE INSURANCE POLICIES OR MAKE COVERAGE DETERMINATIONS. RECORDLINKER IS AN INTERMEDIARY BETWEEN CUSTOMER AND ANY THIRD PARTIES AVAILABLE THROUGH THE RECORDLINKER OFFERINGS. AS A RESULT, 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 BETWEEN CUSTOMER AND ANY SUCH THIRD PARTY.

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, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, 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 EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED 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 ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE 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. CONFIDENTIALITY

10.1   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, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of RecordLinker.

10.2   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 (with respect to RecordLinker). 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.

10.3   Exceptions. The confidentiality obligations set forth in Section 10.2 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.

10.4   Publicity. Customer agrees that RecordLinker may refer to Customer’s name, logo, trademarks, and other relevant reference material: (a) in RecordLinker’s marketing materials and website; and (b) to serve as a customer reference upon RecordLinker’s request. Further, the parties shall work together in good faith within ninety (90) days of the Effective Date to issue: (a) a two sentence testament from a C-level executive that can be used on RecordLinker’s website; and (b) at least one mutually agreed upon press release.

11. INDEMNIFICATION

11.1   By RecordLinker. RecordLinker will defend at its expense any suit brought against Customer, and will pay any settlement RecordLinker makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that any RecordLinker Offering infringes such third party’s patents, copyrights or trade secret rights 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 and Documentation. Notwithstanding the foregoing, RecordLinker will have no obligation under this Section 11.1 or otherwise with respect to any infringement claim based upon (i) use of any RecordLinker Offering not in accordance with this Agreement or as specified in the Documentation; (ii) use of any RecordLinker Offering in combination with other products, equipment, software or data not supplied by RecordLinker; or (iii) modification of any RecordLinker Offering by any person other than RecordLinker or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 11.1 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.

11.2   By Customer. Customer will defend at its expense any suit brought against RecordLinker, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2. This Section 11.2 states the sole and exclusive remedy of RecordLinker and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.

11.3   Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

12. TERM AND TERMINATION

12.1   Term. This Agreement will begin on the Effective Date (or as otherwise agreed in the applicable Order Form) and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year 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 term.

12.2   Termination for Breach. Either party may terminate this Agreement immediately upon 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.

12.3   Effect of Termination. Except as expressly set forth herein, upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10; (c) within seventy-two (72) hours after termination, all Access Protocols will be disabled and all Customer Content deleted, including all application and webservers in the cloud related to the Customer environment, all individual databases and encrypted snapshots and all backups of the foregoing; and (d) any amounts owed to RecordLinker under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 4, 8.2, 9, 10, 11, 12.2, 12.3, and 13 will survive expiration or termination of this Agreement for any reason.

13. MISCELLANEOUS

13.1   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. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit filed there against Customer by RecordLinker arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

13.2   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.

13.3   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.

13.4   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.

13.5   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.

13.6   Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material and Documentation.

13.7   Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, 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.

13.8   Independent Contractors. Customer’s relationship to RecordLinker is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of RecordLinker.

13.9   Notices. All notices required or permitted under this agreement must be delivered in writing, if to RecordLinker, by emailing ‘billing’ ‘at’ ‘recordlinker.com’ and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, 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 Cover Page by courier, 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.

13.10      Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

13.11      Entire Agreement. This Agreement, together with the DPA, Order, and SOW (if applicable) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.

13.12      Modifications. 

(a)    RecordLinker may from time to time: (a) modify the Services and/or Agreement, or (b) cease providing any Services. Any changes will become effective on the date published or upon notification to Customer, but in no case less than 30 days after the date RecordLinker publishes notice of those changes or modifications (except for new features or functionality of a Service, which may take effect immediately). Customer’s continued use of the Service(s) after the effective date of any change will be deemed acceptance of the modified Service or Term and Conditions. It is the Customer’s responsibility to check the RecordLinker website, https://recordlinker.com, periodically, for modifications to the Agreement.

(b)    If RecordLinker makes a material, detrimental change the Service or the Agreement, RecorkLinker will provide Customer with reasonable notice prior to the change taking effect. Such materially revised Agreement or Service will become effective on the date set forth in the applicable notice. If Customer (or any Authorized User) accesses or uses the Services after the effective date of such material, detrimental change, that use will constitute Customer’s acceptance of any revised Services or Terms and Conditions.

13.13      Order of Precedence. If the terms of any attachment to the Terms and Conditions, Order Form, SOW (as applicable), or other purchase document conflicts with these Terms and Conditions, the Terms and Conditions will control, with the following exceptions:

(a)    The DPA will control over the Terms and Conditions as to any provision relating to data subject to the DPA.

(b)    If the Order Form or SOW, as applicable, expressly state that is supersedes specific language in the Terms and Conditions.