TERMS OF SERVICE

THESE TERMS OF SERVICE  (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND SERVICETARGET PBC AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU AS WELL AS YOUR AUTHORIZED USERS AND END-USERS.

By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Authorized Users or End-Users to access or use the Service, You agree to be bound by these Terms. If you are entering into this Terms as an individual, you represent and warrant that you are over the age of eighteen (18) and possess the legal capacity to bind yourself to its terms and conditions. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to ServiceTarget that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates.  If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

1.     DEFINITIONS

Account:  means any ServiceTarget accounts or instances created by or on behalf of Subscriber or its Authorized Users within the Service.

Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

Authorized User:  means an individual authorized to use the Service through Your Account for such Service as identified through a unique login. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

Applicable Law: shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and other one-to-one digital messages.

API:  means the application programming interfaces developed and enabled by ServiceTarget that permit Subscriber to access certain functionality provided by the Service, including without limitation, the ServiceTarget REST API that enables the interaction with a ServiceTarget instance automatically through HTTP requests and the ServiceTarget application development API that enables the integration of a ServiceTarget instance with other web applications.

Confidential Information:  means all information disclosed by You to ServiceTarget or by ServiceTarget to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.  For purposes of these Terms, Your Data shall be deemed Confidential Information.  Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

Data:  means mean all data and other information uploaded by Customer to the Platform or to a Product.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by ServiceTarget to You, Authorized Users or End-Users through the Site or otherwise.

End-User:  means any person or entity other than Subscriber or Authorized User with whom Subscriber or its Authorized Users interact using the Service.

Order Form:  means any ServiceTarget generated service order form executed or approved by You with respect to Your subscription to the Service, which form may detail, among other things, the number of users authorized to use the Service under Your subscription to the Service and the Service Plan(s) applicable to Your subscription to the Services.

Other Services:  means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Services, including, without limitation, Other Services which may be integrated directly into Your Account.

Platform: shall mean ServiceTarget’s self-service platform.

Personal Data:  means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Service:  means the on-demand ServiceTarget customer service solution and tools provided by ServiceTarget, including, individually and collectively, Software, the API and any Documentation.  Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (“Updates”) are also subject to these Terms and ServiceTarget reserves the right to deploy Updates at any time. You understand and agree that the Services may be sold separately or as a bundle; and, that individual Services may be subject to separate and distinct Service Plans.

Service Plan(s):  means the service plan(s) and the functionality and services associated therewith(as detailed on the Site) for which You subscribe with respect to any Authorized User.

Site:  means www.servicetarget.com and other websites that ServiceTarget operates.

Software:  means software provided by ServiceTarget (either by download or access through the internet) that allows an Authorized User or End User to use any functionality in connection with the Service.

Subscription Term:  means the period during which You have agreed to subscribe to the Service with respect to any individual Authorize User.

ServiceTarget: means ServiceTarget PBC, a Delaware Public Benefit Corporation or any of its successors or assignees. In these Terms, ServiceTarget may also be referred to through the use of “We” or “Our”.

2.     GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE

2.1. During the Subscription Term and subject to compliance by You, Authorized Users and End Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan(s) that You subscribe to for Your internal business purposes.  You may not use the Service to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by ServiceTarget from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.

2.2. A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by ServiceTarget, including Secure Socket Layer (SSL) protocol or other protocols accepted by ServiceTarget, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Authorized Users or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by ServiceTarget. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.3. In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Authorized Users and End Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service To Process data on behalf of any third party other than the Authorized Users or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (e) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;  (f) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (g) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (i) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by ServiceTarget; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (l) try to use, or use the Service in violation of these Terms.

2.4. You are responsible for compliance with the provisions of these Terms by Authorized Users and End Users and for any and all activities that occur under Your Account, as well as for all Your Data.  Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations.  You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Authorized Users available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Authorized User permitted under Your subscription to the Service.   You agree and acknowledge that each Authorized User will be identified by a unique username and password (“Login”) and that an Authorized User Login may only be used by one (1) individual. You will not share an Authorized User Login among multiple individuals. You and Your Authorized Users are responsible for maintaining the confidentiality of all Login information for Your Account.

2.5. In addition to Our rights as set forth in Section 7.3, ServiceTarget reserves the right, in ServiceTarget’s reasonable discretion, to temporarily suspend Your access to and use of the Service:  (a) during planned downtime for upgrades and maintenance to the Service (of which ServiceTarget will use commercially reasonable efforts to notify You in (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Authorized Users or End Users.  We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific Time zone) and other off-peak hours.

2.6. ServiceTarget will provide technical support for the Service in accordance with our Service Level Objectives (available at www.servicetarget.com/service-level-objectives).

3.     DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1. Subject to the express permissions of these Terms, You and ServiceTarget will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.  Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.  The provisions of this Section 3 shall supersede any non-disclosure agreement by and between You and ServiceTarget entered prior to these Terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Your Data.

3.2. ServiceTarget will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through the Service at Your election.  Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.

3.3. You agree that ServiceTarget and the service providers it utilizes to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests.  Any third party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations.

3.4. We collect certain information about You, Authorized Users and End Users as well as Your and their respective devices, computers and use of the Service.  We use, disclose, and protect this information as described in Our Privacy Policy, the then-current version of which is available at www.servicetarget.com/privacy and is incorporated into the Terms.

4.     INTELLECTUAL PROPERTY RIGHTS

Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).  The rights granted to You, Authorized Users and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with and belong exclusively to ServiceTarget.  ServiceTarget shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Authorized Users or End Users.

5.     THIRD PARTY SERVICES

If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against ServiceTarget with respect to such Other Services. ServiceTarget is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services.  You may be required to register for or log into such Other Services on their respective websites.  By enabling any Other Services, You are expressly permitting ServiceTarget to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.

6.     BILLING, PLAN MODIFICATIONS AND PAYMENTS

6.1. Your Subscription Term is per your Service Order Form. 

6.2. You hereby authorize ServiceTarget and ServiceTarget’s Payment Agent to bill Your credit card or ACH on a periodic basis in accordance with the terms of the Service Order until You terminate Your Subscription, and You further agree to pay any Subscription Charges so incurred.  ServiceTarget and the ServiceTarget Payment Agent use a third-party intermediary to manage credit card and ACH processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for ServiceTarget and the ServiceTarget Payment Agent.  We will charge you on the first day of the Initial Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. You will receive a receipt upon each receipt of payment by the ServiceTarget Payment Agent.

6.3. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Accounts Page within your ServiceTarget Account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Terms of Service. All fees are due and payable in advance throughout the Subscription Term. If you are a ServiceTarget partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.

6.4. All fees are exclusive of taxes, which We will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are subject to GST, all fees are exclusive of GST.  If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.

7.     CANCELLATION AND TERMINATION

7.1. At the end of the Subscription term, your Service will automatically renew for a Subscription Term equivalent in length to the then expiring Subscription Term until explicitly cancelled by you, in accordance with Section 7.2.

7.2. You may elect to terminate your subscription to ServiceTarget at the end of Subscription Term by sending ServiceTarget written notice at least one (1) day prior to service termination date.

7.3. ServiceTarget reserves the right to not renew the Service for any reason. ServiceTarget may also terminate Services at any time, without penalty and without notice, if you fail to comply with these Terms of Service or our Infringement Notice and Takedown Policy. Notice of termination of Services by ServiceTarget may be sent to the contact e-mail associated with your account.

7.4. Upon termination by You or ServiceTarget, We will export your knowledge base and deactivate Your Account.

8.     DISCLAIMER OF WARRANTIES

THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND SERVICETARGET EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SERVICETARGET DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM SERVICETARGET OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

9.     LIMITATION OF LIABILITY

9.1.      UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SERVICETARGET’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWENTY FOUR (24) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SERVICETARGET WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SERVICETARGET HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.

9.3.      Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SERVICETARGET’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10.   INDEMNIFICATION

10.1.   Subject to Section 9.2. ServiceTarget shall indemnify, defend and hold You harmless from any damages awarded against You (including, without limitation, reasonable costs and legal fees thereby incurred by You) arising out of any third party suit, claim or other legal action alleging that the use of the Services by You as permitted hereunder infringes any copyright, trade secret or United States patent, (“Legal Action”).  Notwithstanding the foregoing, ServiceTarget shall have no indemnification obligations with regard to any Legal Action arising out of: (i) combination of the Services with software or products not supplied or approved in writing by ServiceTarget; (ii) any repair, adjustment, modification or alteration to the Services by You or any third party, unless approved in writing by ServiceTarget; (iii) any breach by You of its obligations under this Terms of Service.  This Section 10.1 states the entire liability of ServiceTarget with respect to any intellectual property infringement by the Services.

10.2.   You shall give prompt written notice to ServiceTarget of any Legal Action within 30 days of Your first knowledge thereof and shall furnish copies to ServiceTarget of all communications, notices and/or other actions relating to any Legal Action.  You shall give ServiceTarget the sole control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of ServiceTarget and shall give ServiceTarget such assistance as ServiceTarget reasonably requests to defend or settle such claim. ServiceTarget shall conduct its defense at all times in a manner, which is not adverse to Your interests. You may employ Your own counsel to assist You with respect to any such claim.  You shall bear all costs of engaging Your own counsel, unless engagement of counsel is necessary because of a conflict of interest with ServiceTarget or Our counsel, or because ServiceTarget fails to assume control of the defense. You shall not settle or compromise any Legal Action without ServiceTarget’s express written consent.  Your material failure to comply with this Section 10.2 shall relieve ServiceTarget of its indemnification obligation under Section 10.1.

11.   ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

11.1.   You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without ServiceTarget’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You in connection with any merger or change of control of ServiceTarget or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

11.2.   These Terms, together with any Order Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and ServiceTarget with regard to the subject matter hereof.  These Terms and any Order Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof.  Notwithstanding the foregoing, additional terms may apply to certain features or functionality ServiceTarget offers through the Services (the “Additional Terms”).  In those instances, ServiceTarget will notify You of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Your Account will be considered acceptance of the Additional Terms.  All such Additional Terms will be considered incorporated into these Terms when You or any Authorized Users authorized as an administrator in Your Account activate the feature or functionality.  Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.

11.3.   We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by ServiceTarget as Your consent to any such amendment.  ServiceTarget’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

12. SEVERABILITY

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

13.   EXPORT COMPLIANCE AND USE RESTRICTIONS

The Service and other Software or components of the Service which ServiceTarget may provide or make available to You, Authorized Users or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Authorized Users and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction.  You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Authorized Users or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Authorized Users and End Users are located.

14.   RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

15.   SURVIVAL

Sections 1, 3, 4 and 7-18 shall survive any termination of our agreement with respect to use of the Service by You, Authorized Users or End Users.  Termination of such agreement shall not limit Your or ServiceTarget’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

16.   NOTICE

All notices to be provided by ServiceTarget to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any Form; or (ii) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to us in writing by Courier or US Mail to the following address:  ServiceTarget, Inc., Attn:  Legal Department, 3301 Wagonwheel Rd, Bozeman, MT 59718, USA.  All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

17.   GOVERNING LAW

These Terms shall be governed by the laws of the State of Delaware without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You, Authorized Users or End Users.

18.   FEDERAL GOVERNMENT END USE PROVISIONS

If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.