TERMS OF SERVICE

Effective: November 15, 2021

Helm Labs LLC offers a data-driven marketing platform built for nonprofits, organizations, publishers, and businesses. These Terms of Service apply to each user(s) of a Helm (or one of its affiliates) platform(s), application(s), website(s), and available services, whether individual end users, enterprise users, or enterprise’s respective agents, contractors, affiliates, and volunteers.

Helm Labs, LLC believes in building communities, and we believe in a healthy participatory democracy. To this end, and in the spirit of a robust and healthy civic dialogue, Helm commits (in accordance with these Terms of Service) to monitoring any interactive communication forums or communities it operates and manages to help ensure that content is free from abuse, hate speech, disinformation and misinformation, and does not endanger participatory democracy within the United States.

To navigate to the community standards section of this policy, please click here. If you have any questions or comments about these Terms of Service, which apply to Helm’s suite of platforms and websites, including the “Crowdskout” platform or website, please contact us at hello@helmteam.us.

 

CONTRACTUAL RELATIONSHIP

These Terms of Service ("Terms") govern each end user’s (“you” or “your”) access or use of the platform(s), application(s), website(s), and available services (collectively herein, the "Services," as more fully defined below) made available by Helm Labs LLC on behalf of itself or an affiliate(s) (collectively, "Helm," “us,” or “we”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND HELM.

By accessing or using the Services or otherwise signifying your acceptance (in any manner designated by Helm) of these Terms, in each case whichever event is earlier, you confirm your agreement to accept and be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services.

Any additional or varied terms and conditions (“Additional Terms” or “Customer Specific Terms”) applicable to specific Services will automatically be incorporated into these Terms by reference. See additional information on changes to these Terms below and please review these Terms and any Additional terms on a periodic basis.

Helm may also immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

 

DEFINITIONS

“Agreement” means these Terms of Service, Additional Terms, Billing Document, Community Standards policy, and any additional Customer Specific Terms attached thereto or incorporated therein.

“Billing Document” means any form(s) submitted to Customer detailing the Services licensed and the amounts Customer is obligated to pay.

“Customer” means the individual or entity licensing the Services and any of its officers, directors, employees, volunteers, representatives, or agents using the Services on behalf of such entity.

“Customer Data” means data originating from the Customer and transmitted through the Services.

“Customer Specific Terms” means terms, if any, specific to a given Customer that are incorporated into a Billing Document or the Agreement.

“Effective Date” means the earlier of either Customer’s payment or the date the Services and tools are available for Customer’s use.

“Services” means the data, analysis, communications, messaging, maintenance, or support services offered and provided by Helm and any services offered or made available through or as a part of Helm’s websites, Helm’s online Platform, or Helm’s mobile applications (“apps”), widgets, solutions, or other product offerings in the form and as provided by Helm. Services herein do not include custom data consulting or other services for which Customer executes a separate agreement with Helm.

“Users” means Customer personnel, affiliates, agents, volunteers, or contractors authorized to access the Services on behalf of or for Customer.

 

PRIVACY POLICY

Please refer to Helm’s Privacy Policy accessible through https://www.helmteam.us and crowdskout.com/privacy-policy, and located at https://www.helmteam.us/privacy-policy, which summarizes how we collect, use, and disclose information about individuals that you may provide to us or that is collected through your use of the Services. When you access or use the Services, you signify your agreement to this Privacy Policy. If you do not agree with the Privacy Policy, you may not use the Services.

 

CHANGES TO SERVICES AND TERMS

Helm continually seeks to update and improve the Services and may add or remove features in order to improve your experience using the Services. But any use of the Services or data collected under the Services will be governed by the Terms in effect at the time of the use.

Please note that Helm reserves the right to change these Terms (including by Additional Terms) by posting a revised version or mailing and/or emailing notice thereof. In addition, Helm may add, modify, or delete any aspect, program, or feature of the Services, but Helm is not under any obligation to add any upgrade, enhancement, or modification. Your continued use of the Services following any announced change will be conclusively deemed acceptance of any change to these Terms (and acceptance of the version of these Terms then in effect). The last date these Terms were revised is set forth above. Any changes to these Terms by you or another entity (other than as set forth in this policy) or any waiver of Helm’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Helm. No proposed waiver or modification of these Terms by Helm via telephonic or email communication shall be valid.

 

REGISTRATION AND ACCOUNT INFORMATION

To use the Services, Helm may require you to register and create an account and profile, Customers will need to provide some identifying information about themselves, including certain information to enable billing and payments and communications between you and us. The information Customers provide must be true and kept up-to-date.

 

FEES

Any fees charged by Helm for your use of the Services (“Service Fees”) are or will be set forth in a separate Master Services Agreement (MSA) between you and Helm. You must pay all such Service Fees within the timeframe identified in your MSA, by the payment designated by Helm in the MSA, without setoff, deduction or delay. If additional services are purchased, additional Service Fees shall be due. Past due payments will bear interest at the rate specified in the MSA, and will be payable from the due date thereof until paid in full. You will be liable for all collection costs and expenses, including reasonable attorneys’ fees incurred by Helm to collect Service Fees. Each party will be responsible for the payment of any taxes due as a result of its provision or use of the Services.

 

LICENSE FOR SERVICES

Contingent on Customer compliance with the terms of the Agreement, and in exchange for the payment of any required Service Fees (noted above), Helm hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable right to use the Services. Commencement of Services may be tied to an Effective Date and period for use specified by Helm at the time of registration. Any and all rights not expressly granted to Customer are reserved by Helm. Helm agrees to use commercially reasonable efforts to provide Customer with the Services and to make the Services available for use.

Notwithstanding the foregoing, Customer may sublicense its right to use the Services to its respective customers (“Sublicensees”). Sublicensees are subject to the then-current Terms of Service and Privacy Policy, which may not be altered by either Customer nor Sublicensee. Customer shall use commercially reasonable efforts to apply these Terms against each such Sublicensee. Sublicensees are not permitted to further transfer, assign or sublicense its rights to the Services to another third party. Helm has and will have no contractual relationship with such Sublicensees, and Helm may revoke any such sublicense at any time for any reason.

Customer agrees (a) not to reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Services, (b) to take appropriate actions to protect the Services and all parts thereof from unauthorized copying, modification, or disclosure by its Users, Sublicensees and other third parties, (c) not to interfere with or disrupt the integrity or performance of the Service or disobey any requirements, procedures, policies or regulations of Helm with respect to its computer systems and networks, (d) attempt to gain unauthorized access to the Services or circumvent or modify any security mechanism employed by Helm, (e) use the Services other than for lawful, internal business purposes and as authorized under the Agreement, (f) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the Services or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses, (g) transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature, (h) make use of the Services in whole or in part in any way to build a competitive product or service, build a product using similar ideas, features, functions or graphics, or copy any of its ideas, features, functions, or graphics. Customer may not use the Services or access the Services if Customer is or will be a direct competitor of Helm, or for any other benchmarking or competitive purposes.

The Services and all rights therein are and shall remain Helm's property or the property of its licensors. The Agreement provides no transfer of ownership. Accordingly, neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted herein; or (ii) to use or reference in any manner Helm's company names, logos, product and service names, trademarks or services marks or those of its licensors.

 

INDEPENDENT CONTRACTOR

Helm and each Customer are independent contractors. Nothing in the Agreement will at any time be so construed as to create the relationship of employer and employee, partnership, principal and agent, or joint venture between Customer and Helm. This paragraph survives termination of the Agreement.

 

CUSTOMER’S ACCESS TO INTERNET

Use of the Services is conditioned on Customer obtaining and maintaining access to the Internet, and all equipment necessary for proper operation of the Services. Customer shall therefore be solely responsible for obtaining and maintaining Internet access and any necessary equipment. Customer is also required to maintain and use secure usernames and passwords for the access and use of the Services. Customer shall further be responsible for ensuring the security and confidentiality of such usernames and passwords and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and shall notify Helm immediately of any such unauthorized use or other known breach of security. Customer is responsible for all activities that occur under Customer’s usernames and passwords. Customer shall report to Helm immediately and use best efforts to stop immediately any unauthorized copying or distribution of the Services that is known or suspected by Customer.

 

COMPLIANCE WITH APPLICABLE LAWS

Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services. Furthermore, Customer must comply with Helm’s applicable community standards policy, as set out below. Any use of the Services in violation of these laws and policies shall be a material breach of the Agreement.

 

COMMUNITY STANDARDS

This community standards policy is a part of the Terms and applies to all Users.

The following are core standards to help us keep the Services and any available interactive communication features or forums safe and trusted spaces for promoting civic engagement and a healthy participatory democracy:

  • Be trustworthy: Users of the Services must not create or promote disinformation or misinformation.

  • Be considerate: Civic participation is intense and can easily slide into rancor. Users commit to taking commercially reasonable steps to create and promote their content in a considerate manner, free of vitriol. Further, Users must not create or distribute hate speech and avoid the creation or promotion of content that is threatening, harassing, unlawful, is an invasion of privacy, or is otherwise disallowed by these Terms.

 

The following categories of content are explicitly disallowed from any Customer or User using the Services.

  • Disinformation. Disinformation is false, misleading information that reasonable business people would conclude is created with the intent to deceive, or a willful disregard for generally accepted facts. Disinformation may also include the following intentional misrepresentations by way of example:

    • Misrepresentation of the dates, locations, times and methods for voting or voter registration or census participation.

    • Misrepresentation of who can vote, qualifications for voting, whether a vote will be counted, and what information and/or materials must be provided in order to vote.

    • Misrepresentation of who can participate in the census and what information or materials must be provided in order to participate.

    • Content stating that census or electoral participation may or will result in law enforcement consequences (for example, arrest, deportation or imprisonment).

    • Explicit claims that people will be infected by COVID-19 (or another communicable disease) if they participate in the voting process.

  • Misinformation. Misinformation is misleading, untruthful, or outdated information, or out-of-context information that is misleading; including, but not limited to outdated scientific information, conspiracy theories, debunked stories.

  • Hate speech. Hate speech is content that uses pejorative language or promotes violence or hatred against individuals or groups based on any of the following attributes:

    • Age

    • Caste

    • Disability

    • Ethnicity

    • Gender identity and expression

    • Nationality

    • Race

    • Immigration status

    • Religion

    • Sex

    • Gender

    • Sexual Orientation

    • Victims of a major violent event and their kin

    • Veteran status

  • Statements of inferiority. Statements of inferiority based on these above categories or calls for segregation may also be considered hate speech, and encouragements of self-harm may also constitute hate speech.

  • Content that endangers participatory democracy. Users may not create or distribute content that could reasonably be understood to endanger participatory democracy within the United States.

  • Threats of violence or fomenting violence. Users may not threaten violence towards others or use the Services to organize, promote, or incite acts of real-world violence or terrorism, or generate or distribute content that is likely to lead to a breach of the peace. When using the Services, Users must think carefully about the words they use, the images they post and how such content may be interpreted by others. Even if something is intended as hyperbolic or a joke to you, it might not be received that way. If a User thinks that someone else might interpret the content that is being created as a threat or as promoting violence or terrorism, they must stop. In extraordinary cases, we may report threats of violence to law enforcement or the appropriate government agency if we think there may be a genuine risk of physical harm or a threat to public safety.

  • Bullying and harassment. We do not tolerate bullying or harassment. This means any habitual badgering or intimidation targeted at a specific person or group of people with the intent to harass. In general, if your actions are unwanted and you continue to engage in them, there's a good chance you are headed into bullying or harassment territory

  • Impersonation. Users may not impersonate another person with the intent to deceive, posting content under their email address, intentionally use a deceptively similar username or otherwise pose as a different entity with the intent to deceive.

  • Doxxing and invasion of privacy. Users may not post the personal information of private persons, including phone numbers, private email addresses, physical addresses, credit card numbers, Social Security numbers, other unique governmental IDs, or passwords. Depending on the context, such as in the case of intimidation or harassment, we may consider other information, such as photos or videos that were taken or distributed without the subject's consent, to be an invasion of privacy, especially when such material presents a safety risk to the subject.

  • Prurient/Sexually explicit content. Users may not post or distribute pornography. If you have any questions or concerns about something you want to post, feel free to reach out to customer support and ask beforehand.

  • Spam or commercial solicitation. Within the content that they create using the Services, Users may not post commercial advertisements, link to spammy websites, or otherwise vandalize the community. Users may not engage in any forms of commercial solicitation.

  • Malware or exploits. We do not allow anyone to use our Services for exploit delivery (e.g. using the Services as a means to deliver malicious executables) or as attack infrastructure (e.g. organizing denial of service attacks or managing command and control servers). If we believe that the Services have been used by a Customer for malicious purposes, we may report that Customer to a law enforcement agency or an appropriate government agency or investigatory vendor or other entity.

 

Helm reserves the right to enforce this policy at its discretion and through any methods it deems necessary; including, but not limited to, warning letters, probationary periods, additional scrutiny, suspending customers or users from the Services, implementing technical changes, or taking appropriate legal action. If you believe a Helm Customer has violated this policy please reach out to privacy@helmteam.us.

 

COOPERATE WITH HELM

Customer shall cooperate reasonably with Helm to enable Helm to provide the Services. Upon request by Helm, Customer shall promptly provide Helm with a list of all of its Users. Customer is responsible for keeping such list current and providing Helm with updates. Customer is responsible for restricting the use of the Services to authorized Users, and for implementing and enforcing industry-standard secure login and password procedures and any other commercially reasonable security means.

 

CALL AND TEXT FUNCTIONS

By providing us with your mobile phone number, you agree to receive SMS messages from Helm related to the Services, including about promotions, your account, and your relationship with Helm (“Communications Functions”). These Communications Functions may be made to your mobile phone number even if your mobile phone number is registered on any kind of “Do Not Call” list, or international equivalent.. These Communications Functions are provided through an agreement with a third-party provider managed by Helm. Helm does not control nor will be held responsible for the quality, accuracy and service levels of such Communications Functions. You are responsible for any mobile charges that you may incur for using our Services, including text-messaging (such as SMS, MMS, or future such protocols or technologies) and data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Services.

By accessing and using any Communications Functions, you hereby acknowledge and agree that it will not engage in any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy regulation in any other jurisdiction or any other applicable self-regulatory standards). In addition, you agree not to use the Communications Functions in connection with any unsolicited or harassing messages (commercial or otherwise) including unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes.

 

INTELLECTUAL PROPERTY RIGHTS

Customer hereby acknowledges that all right, title and interest in and to the Services and all intellectual property rights therein, as well as all software, hardware, processes, user interfaces, algorithms, know-how, techniques, data exports, and other tangible or intangible technical material or information, specifications describing the features, functionality or operation of the Services, used in or comprising the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer to Helm relating to the Services (collectively, the Helm Intellectual Property”) are owned by, and are vested in, Helm (or its applicable licensors/suppliers). Other than as expressly set forth in this Agreement, no rights in the Helm Intellectual Property are granted to Customer and all such rights are hereby expressly reserved by Helm.

As between Customer and Helm, Customer shall retain ownership of all data it or any of its Users submits through the Services.

Customer grants to Helm a non-exclusive, non-revocable, royalty-free, fully paid-up license to use data uploaded or submitted by Customer through the Services in order to provide and improve the Services, and to conduct its own internal analysis of the Services and their use. Any such use of Customer Data will be anonymized by Helm where possible and Helm will use all reasonable efforts to protect Customer’s proprietary data.

This Section survives termination of the Agreement.

 

REPRESENTATIONS, WARRANTIES, AND COVENANTS

Helm and Customer each represent and warrant that each has all requisite right, power, and authority to execute, deliver and perform its respective obligations hereunder; will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party; and will comply, in its performance related to the Agreement, with all applicable laws.

Customer hereby acknowledges that it has not relied upon any warranty, condition, guaranty or representation made by Helm or its affiliates, or any third party. EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HELM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES PROVIDED HEREUNDER. THE SERVICES ARE OTHERWISE PROVIDED AND ACCEPTED BY CUSTOMER “AS IS,” WITHOUT ANY OTHER WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. HELM DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT ALL FAILURES OF THE SERVICES WILL BE CORRECTED.

Helm exercises no control over, and accepts no responsibility for, any third-party components of the Service which are outside Helm’s control. Accordingly, Helm makes no guarantees regarding the speed or uptime of the Service.

Customer represents and warrants that: (i) it owns, or possesses all legal right to provide and process, as contemplated by the Agreement, all Customer Data; (ii) has obtained all necessary consents for the processing and use of the Customer Data by Helm following the termination or expiration of the term of the Agreement; (iv) and has provided all notices to individuals represented in the Customer Data required by Law or by agreement for the performance by the Parties of their obligations under the Agreement and for Helm’s use of the Customer Data after the termination of the Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right of all Customer Data. Helm is under no obligation to review Customer Data for accuracy, acceptability or potential liability. Customer agrees and warrants that it is permitted to share any and all Customer Data and information submitted to Helm through the use of the Services, and that the sharing of Customer Data does not violate any applicable law, regulation, agreement, contract, or privacy policy.

Customer represents and warrants to Helm that Customer, to the best of its knowledge, has complied with all applicable Laws, including the Fair Credit Reporting Act, the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act, in acquiring, processing, compiling, maintaining and disclosing the Customer Data, and that none of the information contained in the Customer Data (a) is used, expected to be used or collected, in whole or in part, for the purpose of serving as a factor in establishing any consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes, employment purposes, or any other purpose authorized under section 604 of the Fair Credit Reporting Act; (b) contains “Non Public Personal Information” as defined in § 6809(4) of the Gramm-Leach-Bliley Act; (c) was or will be collected outside the United States from non-U.S. residents; and (d) was compiled from Federal Election Commission data or reports, except for those of Customer.

Customer shall make best efforts to ensure that no viruses, spyware, malware or similar malicious code (collectively, “Malware”) are coded or introduced into any Customer Data. Customer agrees that, in the event that any Malware is found to have been introduced, Customer shall assist Helm in reducing the effects of the Malware and, if the Malware causes a loss of operational efficiency or loss of data, to reasonably assist Helm to mitigate and restore such losses. Customer shall not knowingly or willfully damage any equipment or system used by Helm in connection with the Services. Helm shall make best efforts to ensure that no Malware is coded or introduced into the Services.

This Section survives termination of the Agreement.

 

COPYRIGHT DISPUTE POLICY

Helm reserves the right to delete or disable Customer Data alleged to be infringing, and to suspend or terminate the access of any Customer alleged to have submitted infringing Customer Data.

Pursuant to 17 USC. § 512 as amended by Title II of the Digital Millennium Copyright Act (the "DMCA"), we have instituted procedures to receive written notification of claimed infringements and to process such claims in accordance with the DMCA. If you believe your copyrights are being infringed, please fill out the Notice of Infringement form below and mail it to us.

The Notice of Infringement contains requested information that substantively complies with the safe harbor provisions of the Digital Millennium Copyright Act, 17 USC. § 512(c)(3)(A), providing that to be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

 

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at the Sites.

  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

  • Information reasonably sufficient to permit the service provider to contact the complaining party such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.

  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.

  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

  • Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent.

 

 

 

CONFIDENTIALITY

Each party shall have access to information that is confidential to the other party (“Confidential Information”) including but not limited to with respect to Helm, the Services and tools, and any other information which is not otherwise readily available in the public domain and specifically including all information marked “Confidential”, and the pricing terms of this Agreement. The Parties agree (i) not to make each other’s Confidential Information available to any third party except as expressly permitted herein; (ii) not to use each other’s Confidential Information except to perform this Agreement, (iii) to hold each other’s Confidential Information in confidence during the term of this Agreement and thereafter, and (iv) no adequate remedy at law exists for breach of this Section and any such breach would cause irreparable harm to the non-breaching party whom shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise. Either party may make such disclosures as may be necessary by reason of legal, accounting or regulatory requirements beyond either party’s reasonable control, provided the disclosing party first provides the other party with sufficient notice of such required disclosure so the other party has a reasonable amount of time to obtain a protective order. Confidential Information shall not include information that (i) is in the public domain through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure, or (iv) is independently developed by the other party. The Parties’ obligations under this section will survive termination of the Agreement for a period of five (5) years.

 

LIMITATION OF LIABILITY

Helm shall not be liable to Customer, or any third parties, for any consequential, indirect, punitive, special, exemplary, or incidental damages or expenses, or damages or expenses of any kind arising from loss of anticipated profits, business interruption, loss of use, loss of revenue, corruption of data, loss of goodwill, cost of capital, loss or damage to property or equipment, and loss of reputation or any and all other similar damages or loss whether in contract, tort, product liability (including negligence or strict liability), or otherwise in connection with or arising out of this Agreement or the use of the Services even if advised of the possibility of the occurrence of such damages or expenses. In no event shall Helm’s liability hereunder to Customer or a third party, from any cause of action whether in contract, tort, indemnity or otherwise, exceed the amounts paid to Helm for the Services hereunder giving rise to the claim in the twelve-month period immediately preceding the event(s) giving rise to the Claim. THIS IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT BY HELM.

This Section survives termination of the Agreement.

 

INDEMNIFICATION

Customer agrees to indemnify, defend and hold harmless Helm, its affiliates, subsidiaries and related companies, and its and their directors, members, officers, agents, representatives, and employees, and each of their respective successors against any and all claims, suits, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred due to, arising out of, or relating in any way to: (a) Customer’s access to or use of the Services, or any products or services provided by a third party in connection with the Services, even if recommended, made available, or approved by Helm; (b) a third party alleging that Customer’s use of the Services infringes the intellectual property rights of, or has otherwise harmed, a third party; (c) any failure or alleged failure of Customer or its Users to comply with any applicable law, rule or regulation in connection with its use of the Services; (d) Claims made or brought against Helm by a Sublicensee to whom Customer has sublicensed or otherwise made available the Services and for which Helm has not any contractual relationship; (e) related to Customer’s access to and use of the Communications Functions on the Services; (f) Customer’s negligence or willful misconduct; and (g) any breach by Customer of these Terms or any representation, warranty or covenant set forth in this Agreement.

This Section survives termination of the Agreement.

 

TERM AND TERMINATION OF USE OF SERVICES

This Agreement shall become effective on the Effective Date and shall remain in effect until terminated consistent with the terms herein, or as long as Customer uses any part of the Services, whichever is earlier.

This Agreement may be terminated earlier in its entirety without liability to the terminating party as follows: (a) by Helm upon fifteen (15) days’ written notice for Customer’s failure to timely pay any Service Fees, (b) by either party upon thirty (30) days’ written notice in the event the other party materially breaches this Agreement, which breach is not cured within thirty (30) days, (c) by either party immediately upon notice upon the institution of any insolvency, bankruptcy or similar proceeding by or against the other party including an assignment for the benefit of creditors, the appointment of a receiver over assets, an attachment of assets lasting more than thirty (30) days, or the other party ceases to conduct its business operations in the ordinary course of business.

Helm may terminate this Agreement immediately if any change occurs in any applicable laws or regulations that would, in its sole opinion, render its performance hereunder illegal or otherwise subject to legal challenge. Helm may suspend access to Services or use of the Services upon breach of this Agreement by Customer. Helm may suspend Services during any period in which Service Fees remain past due and/or terminate your use of the Services. Services may be restored in Helm’s sole discretion upon payment in full of past due amounts and applicable connection and other fees.

 

This Section survives termination of the Agreement.

 

GOVERNING LAW AND EXCLUSIVE VENUE

This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws rules. Each party agrees that as to any dispute arising under or relating to this Agreement or use of the Services, exclusive jurisdiction and venue shall be in state or federal court in the State of Delaware. Each party acknowledges and agrees that it shall not raise in connection therewith, and hereby irrevocably waives, any defense based upon venue, inconvenience, or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing. This Section survives termination of the Agreement.

 

NOTICES

All notices that are required to be given under this Agreement will be in writing and will be sent to the address of the other party as set out in this Agreement or at such alternative address as the party may designate by notice. Any such notice may be delivered personally, by overnight delivery service, by registered or certified mail, return receipt requested, fax or email. Notice delivered personally, by overnight delivery service, or by registered or certified mail shall be effective when received, which shall be no greater than one business day after sent by personal delivery or overnight delivery service or three days after being sent by registered or certified mail. Notices by fax will be deemed received on the date of such fax transmission, provided that the sending fax machine used for such transmission generates a report showing successful completion of such transaction; provided, however, that if such fax transmission is sent after 5:00 p.m. local time at the location of the receiving fax machine, or is sent on a day other than a business day, such notice or communication will be deemed given as of 9:00 a.m. local time at such location on the next succeeding business day. Notices by email will be deemed received when the recipient acknowledges having received that email, either by an email sent to the email address for the sender on the signature page of this Agreement or by a notice given by one of the other means described in this section (with an automatic “read receipt” not constituting acknowledgment). This Section survives termination of the Agreement.

 

ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement of the parties and supersedes all prior or contemporaneous written or oral negotiations, correspondence, understandings, and agreements between the parties respecting the subject matter hereof. Any changes, additions, stipulations or deletions including corrective lining out by any party to this Agreement or signatory to this Agreement will not be considered agreed to or binding on any other party unless such modifications have been initialed or otherwise approved in writing by all parties to this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. The parties agree that should any conflict or inconsistency arise between the application and interpretation of this Agreement and any document provided by either party, other than a mutually agreed upon and signed amendment or waiver, then the provisions of this Agreement shall prevail. This Section survives termination of the Agreement.

 

ASSIGNMENT

Customer shall not assign or transfer this Agreement or any of its rights or obligations herein, whether in whole or in part, without the prior written consent of Helm. This Section survives termination of the Agreement.

 

CUSTOMER IDENTITY AND LOGO(S)

During the term of the Agreement, Customer acknowledges and agrees that Helm may reflect Customer’s status and associated company information and logo on the Helm website and in marketing, advertising, public announcements and other public materials made available by Helm regarding the Services.  

 

GENERAL PROVISIONS

The headings of the clauses of this Agreement are for ease of reference only and will not affect the interpretation, application, or construction of this Agreement.

Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” References to a “party” or the “parties” are to Helm and each respective Customer and their respective Users.”

Unless otherwise stated, this Agreement does not create, and shall not be construed as creating any rights enforceable by any person not a party to this Agreement.

If any provision in this Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the parties’ intent, and the remainder will remain in full force and effect.

Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private communications made by Helm with respect to future functionality or features of the Services.

In the event of any conflict between the provisions in the MSA, these Terms, and any Additional Terms, Billing Document, or Customer Specific Terms between Helm and Customer, the conflict shall be resolved according to the following order of precedence: the MSA, Additional Terms, Billing Document or Customer Specific Terms, these Terms. No terms of conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.

Except for payment obligations, neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement (other than Customer’s payment obligations hereunder) to the extent that such failure or delay is due to circumstances beyond its reasonable control, including acts of God/force majeures, acts of a public enemy, fires, floods, embargoes, storms, explosions, pandemics, vandalism, cable cut, power failure, epidemics, national emergencies, insurrections, riots, wars, lockouts, boycotts, work stoppages, labor disputes or other labor difficulties, failure or malfunction of Customer equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than Helm, or of any civil or military authority.

No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.

If a proceeding is brought for the enforcement of this Agreement or because of any alleged or actual dispute, breach, default or misrepresentation in connection with any of the provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled.

The Services are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable and as amended. Any use, modification, reproduction, release, performance, display or disclosure of the Services or such documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.

This Section survives termination of the Agreement.