Terms of Service
1. Definitions
“5X” means the 5X company described in the “5X Contracting Entity, Notices, Governing Law, and Venue” section below.
“5X Materials” means the Services, Documentation, Feedback, tools, methodologies, processes, protocols,simulations, technologies, and all other tangible or intangible materials (including hardware, software,source code, documentation, methodologies, know how, processes, techniques, ideas, concepts, technologiesand data) provided or used by or on behalf of 5X, including any materials used in providing the Services, andall improvements, updates, and derivatives of any of the foregoing.
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
This “Agreement” means these Terms, together with all Order Forms.
“Client Materials” means any data, information, platforms, programs, software, reports, dashboards, databases, or any other materials belonging to the Client.
“Documentation” means any user guide, how-to guide, instructions, help, information, and other documentation and information in connection with the Services that are delivered by 5X to Client in electronic or other form.
“Feedback” means any and all suggestions, ideas, enhancement requests, recommendations or other information provided by Client or any third party relating to any 5X products or services.
Billing Cycle” means from the 1st day of the calendar month until the last day of the calendar month. In the case of a client joining after the 1st day of a month, that month’s billing cycle would be prorated from the day of joining till the end of the calendar month. The following month(s) would be considered as normal billing cycle(s) with no pro-rata given for the platform fee. In the event of Termination, the billing cycle would be considered till the last day of the current calendar month to ensure all fees are calculated and invoiced to the client. For avoidance of doubt, the only time the company would provide a pro-rated payment is at the start of the contract with the client, in case the contract started after the 1st. Both upgrades and downgrades on Platform Plan would be considered as retroactively upgraded or downgraded in the same calendar month, irrespective of the date the plan is amended. Annual plans are not able to be downgraded until the full-service period is completed.
“Platform Plan” means platform access on a certain tier, each with its own unique pricing and benefits.
“Fees” means the fees charged by 5X for the Platform, vendor pricing or data services as identified on each Order Form. All Fees are non-refundable, non-creditable and non-pro-rateable unless otherwise expressly noted hereunder.
“Platform Services” means access to 5X Self Service Platform on the clients chosen Platform Plan.
“Services” means on demand data engineering or analyst hours in excess of included services on the specific Platform Plan, in each case the pricing is set forth in a mutually agreed upon Order Form. If the client is to exceed the services included in their plan, 5X would automatically add an additional data services pack.
“Subscription Term” shall mean a monthly recurring term of access to the Platform until cancelled by the client, except if otherwise agreed in an order form.
“Talent” shall mean any one or more persons (e.g., computer engineer(s), programmer(s) or developer(s)) that 5X engages and assigns to perform certain work as described in the applicable Order Form which would be part of the company’s services offering.
“Change Order” means a change order or amendment to an Order Form (online or written) that is agreed to and signed in writing by both parties with respect to any Technical Services to be performed hereunder.
2. Service Provision and Access;
2.1. 5X will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and the online or written Order Form. Customer may permit its Contractors and Affiliates to serve as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Customer shall be responsible for each User’s compliance with this Agreement, and acts or omissions by any User shall be deemed acts by Customer. To the extent Customer utilises Client Software in connection with its use of the Service, 5X grants to Customer and its Users a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the Client Software internally in connection with Customer’s and its Affiliates’ use of the Service, subject to the terms and conditions of this Agreement and the Documentation.
2.2. Compliance with Applicable Laws. 5X will provide the 5X Offerings in accordance with its obligations under laws and government regulations applicable to 5X’s provision of such 5X Offerings to its customers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of 5X Offerings, without regard to Customer’s particular use of the 5X Offerings and subject to Customer’s use of the 5X Offerings in accordance with this Agreement.
2.3. General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service (or any Deliverables, if applicable) to a third party (except as set forth in the Documentation for Service features expressly intended to enable Customer to provide its third parties with access to Customer Data, or as set forth in an SOW, as applicable) or in a service bureau or outsourcing offering; (b) use the Service to provide, or incorporate the Service into, any substantially similar cloud-based service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non- public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to 5X); (d) remove or obscure any proprietary or other notices contained in the Service; or (e) use any 5X Offerings in violation of the Acceptable Use Policy.
3. Customer Data;
3.1. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Service. Subject to the terms of this Agreement, Customer hereby grants to 5X and its Authorized 5X Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent
necessary to provide the 5X Offerings to Customer, to prevent or address service or technical problems therein, or as may be required by law.
3.2. Use Obligations.
(a) In General. Customer’s use of the 5X Offerings and all Customer Data will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to 5X under this Agreement and that the processing of Customer Data by 5X in accordance with this Agreement will not violate any laws or the rights of any third party.
(b) HIPAA Data. Customer agrees not to process any HIPAA Data in the Service unless Customer has entered into a BAA with 5X. Unless a BAA is in place, 5X will have no liability under this Agreement for HIPAA Data,notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer is permitted to process HIPAA Data in the Service, then Customer may process HIPAA Data in the Service only by providing it as Customer Data. Upon mutual execution of the BAA, the BAA is incorporated by reference into this Agreement and is subject to its terms.
3.3. Data Privacy. The parties shall comply with the DPA.
4. TECHNICAL SERVICES
4.1. Provision of Technical Services. 5X will perform the Technical Services for Customer as set forth in each applicable online Order Form subject to the terms and conditions of this Agreement. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Service. Subject to the terms of this Agreement, Customer hereby grants to 5X and its Authorized 5X Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the 5X Offerings to Customer, to prevent or address service or technical problems therein, or as may be required by law.
4.2. Assistance. Customer acknowledges that timely access to applicable Customer Materials, resources, personnel, equipment or facilities is necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with 5X during a Technical Services project. 5X will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under Section 2.
4.3. Customer Materials. Customer hereby grants 5X a limited right to use any Customer Materials solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer Materials comprising Confidential Information will be subject to Section 5 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to 5X under this Agreement and that the Customer Materials will not violate any third-party rights.
4.4. Access to Customer Data under an online Order Form. With respect to access to any Customer Data under an online Order Form, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the specific online Order Form. Customer agrees that it will not grant 5X access to Customer Data unless specifically required and noted in an online Order Form, and that Customer will grant any such access only during the term of the applicable Technical Services project. Unless otherwise specified in an online Order Form, Customer must ensure that: (a) any access to Customer Data that it grants is limited to read-only access in Customer’s development environment for the Service (and Customer will not grant access to any other environment, such as its test, production or disaster recovery); and (b) Customer will not grant access to any Customer Data that is unencrypted or contains sensitive data, including without limitation, any personal data, credit card or other financial account information, or protected health information. To the extent access to Customer Data is granted, unless otherwise specified in an online Order Form, Customer will provide 5X with: (i) secure Customer workstations and networks for accessing Customer Data that are monitored, managed, configured, supported and maintained by Customer; and (ii) unique user ID/passwords to each 5X resource that requires access to Customer Data, and these credentials will be solely managed by Customer.
4.5. License to Deliverables. The Technical Services 5X performs and the resulting Deliverables are generally applicable to 5X’s business and are part of 5X Technology. Subject to the terms and conditions of this Agreement (including the restrictions in Section 2.3 (General Restrictions)), 5X hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Service during the period in which such Customer has valid access to the Service. The parties may mutually agree to written Order Forms with additional terms and restrictions related to the use of Deliverables provided as part of that project, in which case those terms and restrictions will also apply for purposes of those Deliverables only.
4.6. Change Orders; Other Terms. Customer may submit written requests to 5X to change the scope of Technical Services under an existing Order Form.. 5X will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions or scope for the performance of the Technical Services. Neither party is bound by changes to an Order Form unless the parties have entered into a Change Order or updated Order Form with respect thereto. 5X may use subcontractors to deliver Technical Services but will remain responsible for their performance of those Technical Services under the applicable terms and conditions of this Agreement. For clarity, Customer will be responsible for any consumption and other fees for the Service that are generated as part of the Technical Services.
4.7. Vendors and Vendor Products. 5X may, in good faith, introduce third party service or product providers (“Vendors”) to and/or for Client (e.g., Narrator, Looker,, Snowflake, Heap, Sigma,, Mixpanel, Amplitude, Hightouch, Datafold, Metaplane, Big Query and other database management, data analytics or communication tools) (such third party services and products, “Vendor Products”) and with Client’s approval or consent enable such Vendor Products on behalf of Client. Client hereby agrees to comply with the standard terms and conditions applicable to Vendor Products used by the Client (“Vendor Terms”), and Client’s relationship with each Vendor is governed solely by the applicable Vendor Terms. While 5X will provide reasonable assistance to resolve challenges faced by Client in relation to Vendor Products, and may bill Client, recommend certain Vendor Products, provide instructional support or training for Vendor Products and/or provide promotional pricing or trial subscriptions for Vendor Products, except for enabling the Vendor Products, all activities relating to Vendor Products shall be performed by the respective Vendors, and neither party hereunder shall have any liability to the other party in connection with the Vendor Products or any acts or omissions of any Vendors. Where performance of Services depends on Client actions or compliance with any Vendor Terms, then 5X’s provision of Services is conditioned on completion of such actions or such compliance.
5. CLIENT DUTIES AND RESPONSIBILITIES.
Client shall: (i) pay 5X as per the terms set forth in Section 9 hereunder; (ii) provide, at its cost, the software tools, database access, and system clearance for 5X and/or its Talent to complete the Services (iii) use Talent only in assignments that match the job descriptions for which 5X places them and not change Talent’s job duties without 5X’s express prior written approval; (iv) use best efforts set out clear requirements and expectations in the applicable Order Form, (v) comply with all applicable laws with respect to its engagement with Talent; and (vi) be responsible for acquiring all rights and licenses to any software, code, information, documentation, or other materials and intellectual property that Client acquires from third parties and/or furnishes to 5X or Talent and for ensuring that Client has all rights and licenses necessary to enable the Services to be performed.
6. RESTRICTIONS.
6.1. Restrictions. Client shall not directly or indirectly (a) use any of 5X Confidential Information (as defined below) to create any service, software, documentation or data that is similar to, or competes, with any aspect of the Services; (b) disclose the Services (including Documentation) to third parties or use the Documentation for any reason other than in connection with the Services; (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of United States or any other relevant jurisdiction; or (f) permit any third party to engage in any of the foregoing acts.
6.2. Non-circumvention and Damages. During the term of this Agreement and for twenty-four (24) months thereafter (the “Restricted Period”), Client shall not, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for the performance of services, or engage in compensation discussions with any Talent who Client becomes aware of from 5X, or in connection with this Agreement (a “Restricted Talent”). Client also agrees that it will not refer Restricted Talent, directly or indirectly, to any related parties or Affiliates, including without limitation subsidiaries, parent companies, partnerships, holdings or investors without the prior written consent of 5X. Client acknowledges and agrees that any breach of this Section 4 shall be deemed to be a willful, material breach of this Agreement, shall not be subject to any limitation on liability or exclusion of any form of damages, and shall entitle 5X to injunctive relief in addition to all damages suffered by 5X in relation to such breach and 5X’s response to such breach (including attorney’s fees and investigation costs, lost commercial opportunities, internal costs, and others).
7. PROPRIETARY RIGHTS.
7.1 Client Agreement with Talent. Client shall provide its desired form of invention assignment and confidentiality agreement for Talent to sign in connection with the performance of any work by Talent on behalf of Client; 5X shall use commercially reasonable efforts to assist Client and Talent in entering into such an agreement. If Client does not enter into such an agreement with Talent, then (i) Talent will be subject to intellectual property assignment provisions with respect to work product it produces for Client pursuant to Talent’s agreement with 5X; (ii) subject to Client paying all fees due and fully performing Client’s other material obligations hereunder, 5X hereby assigns to Client all of 5X’s right, title, and interest in and to such work product,, and (iii) Client shall be a third-party beneficiary of Talent’s confidentiality obligations to 5X, solely with respect to the confidential information of Client; for the avoidance of doubt, nothing herein shall convey any ownership of any element of the 5X Self-Service Platform.
7.2 Underlying Technology. The assignment in Section 5.1(ii) above does not include any Underlying Technology. “Underlying Technology” means (a) 5X’s existing or background technology, 5X’s confidential and proprietary methodologies, know-how and intellectual property existing now or otherwise arising outside of work under this Agreement, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in performance of this Agreement that have general applicability in 5X’s business, and (c) any intellectual property relating to any of the foregoing. To the extent any Underlying Technology is incorporated into or otherwise reasonably necessary to use any work output generated by Talent, then, subject to the terms and conditions of this Agreement, 5X grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Underlying Technology and to make derivative works of the same in connection with the exploitation of Talent’s work product. 5X will (and will use commercially reasonable efforts to cause Talent to) reasonably assist Client, at Client’s request and expense, to further evidence, record, perfect, and maintain any rights so assigned
7.3. Technical Services. Except for the limited rights and licenses expressly granted to Client in Sections 5.1 and 5.2 hereunder, no other license is granted, no other use is permitted and 5X (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services and all Underlying Technology and 5X Materials.
7.4. Feedback. All Feedback shall be owned by 5X, and Client hereby assigns all right, title and interest in and to such Feedback to 5X.
7.5. General Knowledge. Notwithstanding anything to the contrary herein, Client agrees that 5X may reuse all generalized knowledge, experience, know-how, reports, analyses, works, and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services under this Agreement, provided that 5X may not use such information in any manner that identifies Client (collectively, “General Knowledge”). General Knowledge will be solely 5X’s Confidential Information.
7.6. Product Improvement and Aggregated Statistics. Client further agrees that 5X has the right to aggregate, collect and analyze Client data and other information relating to the use or performance of the Services and shall be free (during and after the term hereof) to (i) use such data and other information to improve 5X’s and its affiliates’ products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Client or any individual.
8. CONFIDENTIALITY
Each party agrees that the business, technical, and financial information designated in writing as confidential, or disclosed in a manner that a reasonable person would understand the confidentiality of the information, shall be the confidential property of the disclosing party and its licensors (Confidential Information). For the avoidance of doubt, the Documentation is the Confidential Information of 5X. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes known to the general public, through no fault on the part of the receiving party; (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the receiving party. The receiving party will use a degree of care not less than the care that it ordinarily uses with respect to its own confidential information of similar nature and importance, but in no event less than a reasonable degree of care, to (i) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) except as authorized by the disclosing party in writing, limit access to Confidential Information of the disclosing party to those of its employees, consultants, contractors and subcontractors who need to know such information for the performance of obligations or exercise of the receiving party’s rights hereunder. Client will not disclose the terms of this Agreement or any Order Form to any third party without the 5X’s prior written consent, provided that Client will have the right to disclose a copy of this Agreement to its legal, professional and financial advisors. Upon the receiving party’s request after the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give prior notice of such disclosure (to the extent legally permitted) to the disclosing party to permit the disclosing party to request protective orders or other confidential treatment therefore.
Respecting the confidentiality of client’s information is ingrained in every aspect of the company’s operations. In line with the SOC2 Trust Service Criteria for Confidentiality, all collected data are classified based on internal policies, segmenting information to ensure that only authorized personnel have access. Adhering to the principle of least privilege, access is restricted to the minimum necessary for designated tasks, enhancing the confidentiality of your data. All data, whether in storage or during transit, is subjected to rigorous encryption protocols to prevent unauthorized interception. The Company’s dedication extends to the lifecycle of your information, as the Company dispose of data that is no longer required, following internal policies and industry best practices. This holistic approach ensures that confidential information remains safeguarded at all times.
9. PAYMENTS.
9.1. Fees. Client agrees to pay 5X all Fees and expenses in the amounts and methods specified in the applicable online Order Form and invoices. 5X may provide Client with written notice of a change or increase in pricing and such modified pricing will become effective thereafter at the time of the renewal.
9.2. Billing cycle. Clients would be billed monthly on the 5th of every month for any consumption. Capacity plans would predominantly be priced annually in advance, unless agreed differently on the specific order forms.
9.3. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes” ). Client is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on 5X’s net income. If 5X is deemed to have the legal obligation to pay or collect Taxes for which Client is responsible, the amount shall be invoiced to and paid by Client, unless Client provides 5X with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.4. Payment Terms. All amounts (in USD) due hereunder shall be paid as they become due via credit card, or in the case of any other method within 5 business days (without deduction, set off or counterclaim). Where 5X is late in issuing the invoice for payments methods other than credit card, the Client would still have 5 working days to pay and for Credit Cards on the date of invoicing. Late payments will be subject to the lower of 1.5% per month penalty, or the maximum amount permitted by applicable law, compounded monthly on all outstanding overdue balances. Where the payment date falls on a public / bank holiday, the Client agrees to bring forward the payment to an earlier date when such payment is possible.
9.5. Disputes. Client must contact 5X no later than 30 days after receipt of an invoice in which Client believes there is an error in order to receive an adjustment or credit. Client agrees that failure to submit a timely dispute shall result in the waiver of Client’s right to dispute the invoiced amount.
10. WARRANTY AND DISCLAIMERS.
10.1. General. Each party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable inaccordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
10.2. Client. Client represents and warrants that (a) it will comply with all applicable laws, rules and regulations; and (b) it will only use the Services in accordance with this Agreement.
11. Disclaimers
11.1. No Warranties. The SERVICES ARE PROVIDED “AS IS.” 5X DOES NOT WARRANT THAT THE SERVICES RESULT IN ANY OUTCOME, OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, 5X HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
11.2 Vendors. 5X shall not be liable for any Vendor Products or Vendor commitments. 5X cannot guarantee the continued availability of Vendor Products and may cease providing Services reliant on such Vendor Products without entitling Client to any refund, credit, or other compensation (e.g., without limitation, if a tool or service becomes inoperable through no fault of 5X).
11.3. Client materials. Client shall not provide 5X with access to Client Materials. 5X is not responsible for any disclosure, modification or deletion of any Client Materials. 5X expressly disclaims any liability in connection with therewith, and Client is solely liable for any errors, loss, or any other damage to the Client Materials even if such errors, loss, or other damage is caused by the 5X.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL 5X OR ITS AFFILIATES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO 5X UNDER THE APPLICABLE ORDER FORM DURING THE PREVIOUS SIX (6) MONTHS, EVEN IF 5X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. INDEMNITY.
Client shall indemnify, defend and hold harmless 5X, and its Affiliates, and their current and former officers, directors, employees, agents and representatives from and against any and all third party claims, causes of action, suits, damages, losses, costs and expenses (including, without limitation, attorneys’ fees and costs) arising out of Client’s breach of any representation, warranty or other obligation in this Agreement, Client’s use or misuse of the Services in violation of this Agreement or Applicable Law or Client’s work or relationship with any Talent.
14. TERM AND TERMINATION.
14.1. Term. The term of this Agreement will commence on the effective date of the subscription term and continue until terminated as set forth below. In terms of the services offering, except as set forth in the applicable Order Form, the term of each Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal of at least thirty (30) days notice.
14.2. Termination; Suspension. (a) Subscription term can be cancelled at any-time (except if specified otherwise in the order form) and access would remain until the end of the current billing cycle, fees would also be payable until last day of subscription, (b) The services agreement may be terminated by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; and (b) this Agreement may be terminated by either party upon written notice to the other party at any time if there are no outstanding Order Forms. Termination of this Agreement shall terminate all outstanding Order Forms. Without limiting its rights and remedies hereunder, or at law or equity, 5X may suspend the Services in the event of any unpaid or overdue payments. Because Client’s relationship with Vendors is pursuant to the applicable Vendor Terms, termination of this Agreement will not automatically terminate Client’s access to Vendor Products.
14.3. Effects of Termination. Except as otherwise set forth on an applicable Order Form, any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) 5X shall cease providing the Services and (c) any terms or conditions that by their nature should survive such termination will survive, including terms and conditions relating to payment, proprietary rights or restrictions, confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
15. GENERAL PROVISIONS.
15.1. Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. This Agreement supersedes any forms, order forms, invoices, policies, or other terms and conditions provided by either party. Except as set forth in Section 12.8, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English, which language shall be controlling in all respects. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other addresses designated by written notice.
15.2. 5X Contracting Entity, Notices, Governing Law, and Venue. The 5X entity entering into this Agreement, the address to which Client should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit (if any) will be set forth in the applicable Order Form. 5X may extend the rights granted hereunder and/or delegate its obligations hereunder to any of its Affiliates. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Notices to Client may be sent to the address listed on the applicable Order Form or email address provided by Client when it creates its account with 5X.
Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon confirmed receipt, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
15.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 (Restrictions), Section 5 (Proprietary Rights) or Section 6 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
16. Force Majeure.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, pandemic, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.
17. Publicity.
Client hereby grants 5X a limited, non-exclusive license to use Client’s name and logo to identify Client as a customer of 5X, including on 5X’s public-facing website and in marketing and promotional materials.
18. Assignment.
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, 5X may assign this Agreement to any successor to all or substantially all of its business or assets that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
18.1. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
18.2. Amendment. 5X reserves the right in its sole discretion and at any time and for any reason to modify these Terms. Any modifications to these Terms shall become effective upon posting on 5X’s website, provided that if Client has paid for a subscription to the Services, then such modifications will be effective with respect to such subscription on the date of Client’s next subscription renewal. It is Client’s responsibility to review these Terms from time to time for any changes or modifications. If Client does not agree to the modified terms, Client may provide notice of Client’s non-renewal at any point prior to the Client’s next renewal.
19. Security.
The cornerstone of the company’s operations lies in ensuring the utmost security of the client’s data and digital assets. The company's commitment to adhering to the SOC2 Trust Service Criteria for Security is unwavering by maintaining a robust security posture through an integrated approach that encompasses various facets. Proactive measures include continuous monitoring of the security landscape and attack surface, enabling the company to swiftly detect and respond to potential threats. Multi-layered security protocols such as two-factor authentication (2FA) for critical infrastructure and vendor accounts are enforced, bolstered by state-of-the-art network and application firewalls. Data entrusted to the company is treated with the highest level of encryption, both at rest and in transit, to prevent unauthorized access. Our vigilant intrusion detection systems further fortify our defence mechanisms. These practices collectively ensure that client’s valuable data remains shielded from vulnerabilities and potential breaches, reflecting our resolute commitment to your security.
20. Availability.
The level of service provided to the Client shall be determined by the tier selected by the Client at the time of entering into this Agreement. Each tier offers specific services, and the details of these services are outlined in the attached Tier Schedule. The Client acknowledges and agrees that the services available under this Agreement are limited to those specified within the selected tier.
21. Service Level Agreement.
The level of service provided to the Client shall be determined by the tier selected by the Client at the time of entering into this Agreement. Each tier offers specific services, and the details of these services are outlined in the attached Tier Schedule. The Client acknowledges and agrees that the services available under this Agreement are limited to those specified within the selected tier.
22. Execution.
The parties may execute any documents hereunder in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. The parties will be bound by signatures made by hand or electronic means, which may be transmitted to the other party by mail, hand delivery, email and/or any electronic method and will have the same binding effect as any original ink signature.
