(October 2022)
THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE SERVICES AND SOFTWARE PROVIDED BY DODGEBALL, INC. (“DODGEBALL”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF DODGEBALL’S SERVICES OR SOFTWARE, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ON THE DATE IT IS AGREED TO BY CUSTOMER AS PART OF THE ORDER PROCESS – AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN DODGEBALL AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
Subject to all the terms of this Agreement, Dodgeball grants Customer the non-sublicensable, non-transferrable, nonexclusive, limited right to remotely access and use the service described in the Order Process (as defined below) and any associated materials provided or made available (e.g. online) by Dodgeball (such as documentation) (collectively, the “Service”) - but only for Customer’s business purposes in connection with orchestration and management of anti-fraud and application security. The “Order Process” is Dodgeball’s online order process (or a schedule, statement of work and/or other ordering document executed by the parties). Any software that is provided (“Software”) will only be used for the purposes of using the Service. Any software will be included in the definition of “Service”. All activity under the Agreement shall be strictly in accordance with and subject to Dodgeball's applicable usage documentation (if any) (“Documentation”).
Dodgeball will use commercially reasonable efforts to ensure the Service is substantially operational on a 24/7 basis (subject to downtime for scheduled maintenance, emergency maintenance, and matters beyond Dodgeball’s reasonable control).
Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to or sublicense the Service (or any data or information therein) to a third party (except contractors acting on Customer’s behalf – and Customer is fully responsible and liable for their breach of this Agreement); (b) use the Service to help develop any competitive product or service, (c) use the Service for the benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to Dodgeball, in which case Dodgeball may terminate this Agreement immediately), (e) modify or create derivatives of the Service or any other materials provided by Dodgeball, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by Dodgeball. Customer will not disclose any pricing related information, or information related to performance of the Service, to any third party (and all such information is Dodgeball's Confidential Information). For clarity, to the extent Dodgeball provides Customer with any data (whether provided directly by Dodgeball or via its data provider partners), such data must not be resold or otherwise monetized by Customer.
The Service will enable Customer to send Customer Data (as defined in Section 2.1 below) to and from different third-party products, services, sources, and destinations (“Third-Party Services”). Customer is responsible for selecting and configuring the Third-Party Services it chooses to use with the Service and for any exchange of Customer Data it enables through the Service. Notwithstanding anything to the contrary, Dodgeball is not responsible for any Third-Party Services used by Customer with the Service, their code or technology, or how the providers use or protect Customer Data. Customer’s use of any Third-Party Services is subject to Customer’s separate agreement with the provider.
Notwithstanding anything else, Customer grants Dodgeball a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. Dodgeball agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to Dodgeball for the Service.
“Customer Data” means all (i) data provided by Customer or its systems or providers to Dodgeball, (ii) all data collected by the Software from Customer’s environment, and (iii) any reports and other data output generated for Customer via its use of the Service. As between the parties, Customer shall retain all right, title and interest in the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Dodgeball a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Service to Customer. Dodgeball will not sell, distribute, or otherwise provide any Customer Data to any third party (but data will be stored and processed by Dodgeball’s services providers to the extent acting on Dodgeball’s behalf hereunder and provided that Dodgeball is fully liable for their breach of this Agreement. Customer represents and warrants that (i) it has all rights and authorization to provide the Customer Data, (ii) the provision of Customer Data, and Dodgeball’s use of the data as authorized hereunder, is allow by Customer’s privacy policy, and (iii) Customer’s provision, use and maintenance of Customer Data complies with all laws, regulations and third-party rights. For clarity, Customer is fully responsible for ensuring that its end users agree to a Customer privacy policy that allows for such information to be used hereunder.
Dodgeball will implement and maintain a reasonable information security program with administrative, physical, and technical safeguards designed to help protect the integrity of Customer Data.
Dodgeball will have an irrevocable, perpetual right to retain and internally use any data referenced in Sections 2.1(ii) or (iii) in an aggregated and deidentified form to internally improve its products and services (such as training algorithms).
Customer will own the copyright to all Customer Data. With respect to the Customer Data referenced in Section 2.1(iii), Dodgeball assigns all copyrights in (i) such data to Customer and (ii) all reports and analytics generated by the Service with respect to the Customer Data. Except for such data, Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to use the Service.
All fees are as set forth on Dodgeball's website (or as otherwise agreed to by Dodgeball and Customer in writing). Fees are payable when due. If Customer has provided Dodgeball with a credit card or bank account number, Customer hereby authorizes Dodgeball (or its third party payment processor) to charge such card or account for all fees owed. If Customer pays in advance for usage-based pricing, and then exceeds such usage, Dodgeball will invoice Customer for the excess usage on a pro rata basis for the remainder of the term. Dodgeball may adjust the fees charged to Customer hereunder on notice at any time. If Customer does not want to agree to any fee increase, its sole remedy, and Dodgeball’s exclusive liability, is to terminate this Agreement on notice (or by canceling Customer’s Service account via the functionality provided therein). If Customer disagrees with an invoice, it must notify Dodgeball within thirty (30) days from receipt of the invoice – or it is deemed final. Dodgeball’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of Dodgeball.
In the event of late payments, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse Dodgeball for all costs of collection (including attorneys’ fees). If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Dodgeball reserves the right to suspend Customer’s access to the Service, with or without notice, without liability to Customer until such amounts are paid in full.
This Agreement will begin on the Effective Date and will have the subscription term selected by Customer in the Order Process (“Subscription Term”). The Subscription Term will automatically renew for successive renewal terms of equal length to the initial Subscription Term, unless: (i) Customer cancels its Service account via the account functionality prior to the renewal date, or (ii) this Agreement is otherwise terminated as set out herein.
Dodgeball may terminate this Agreement and the Subscription Term at any time, with or without notice; provided that, if such termination is in the middle of a Subscription Term and termination if not for Customer’s breach, Dodgeball will refund all fees paid in advance for the remainder of the Subscription Term. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding.
Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) Customer will return to Dodgeball (or destroy at the Dodgeball’s request) its Confidential Information (subject to Section 5.4 below). In the event this Agreement is terminated by Customer for Dodgeball’s uncured breach as authorized in Section 5.2, Dodgeball will promptly refund to Customer all fees paid in advance for the remainder of the term. Except as expressly set forth in the preceding sentence, all fees are non-refundable and non-cancellable.
During the thirty (30) days period immediately following expiration or termination of this Agreement, Dodgeball will, on request, provide Customer with a copy of its Customer Data (in a format reasonably requested).
The following Sections shall survive any expiration or termination of this Agreement: 1.3, 1.4, 1.5, 2.3, 4 (with respect to outstanding payment obligations), 5, 6.3, 7, 8 and 12.
Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party.
EXCEPT AS SET FORTH IN SECTION 6.1, THE SERVICE IS PROVIDED “AS IS” AND DODGEBALL DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DODGEBALL SHALL NOT LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO DODGEBALL DURING THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00), OR (III) THE COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES.
Customer shall indemnify and hold harmless Dodgeball from and against any claim arising from or in connection with (x) the Customer Data, (x) Customer’s breach of Section 1.3, or (z) any issues Customer has with, or causes to, any Third-Party Services.
Each party agrees that all business and technical information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be Dodgeball’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
Customer agrees that Dodgeball may use of Customer’s name and logo on Dodgeball’s website and in Dodgeball promotional materials as part of a general list of customers. Any other marketing or promotion use is subject to Customer’s written approval (email is sufficient).
Customer will not assign or transfer this Agreement without Dodgeball’s written consent, except that it may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities (provided that the successor is not a competitor of Dodgeball). Dodgeball may freely assign this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
Dodgeball will not be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of Dodgeball, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency.
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
All notices to Customer may be provided by Dodgeball via email or account notification. Any legal notices to Dodgeball must be sent to Dodgeball, Inc., 548 Market St., PMB 67142, San Francisco, California 94104-5401. In addition, legal notices must also be sent to legal@dodgeballhq.com (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. It may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).