Tango Services Terms
In connection with an order form (“Order Form”) entered into between Tango and the subscriber identified in the Order Form (“Subscriber”), Tango may provide Subscriber with access to certain of its Subscription Services and provide Professional Services. Subscriber’s use and receipt of the Services is subject to the additional terms herein (the “Services Terms”). In the event of any conflict or inconsistency between these Services Terms and the terms in an Order Form, these Services Terms will control. Tango and Subscriber are referred to herein each individually as a “Party” and collectively as the “Parties.”
PLEASE READ THESE SERVICES TERMS CAREFULLY. BY AGREEING TO THE ORDER FORM, YOU AGREE TO BE BOUND BY THESE SERVICES TERMS. IF YOU DO NOT AGREE TO ALL OF THESE SERVICES TERMS, DO NOT AGREE TO THE ORDER FORM OR USE OR RECEIVE THE TANGO SERVICES.
1. Scope. These Services Terms govern Subscriber’s use of Tango’s web-based predictive analytics and real estate lifecycle management service modules identified in the Order Form (the “Subscription Services”) on a subscription basis during the Term (as defined below). Tango may also provide Professional Services (as such term is defined below) to Subscriber in connection with its use of the Subscription Services (such Subscription Services and Professional Services are referred to herein collectively as the “Services”).
2. Access and Use of Subscription Service.
2.1. By Subscriber. Subject to the terms and conditions of these Services Terms and the payment of the fees and expenses payable as provided in the Order Form and these Services Terms, hereunder, Tango grants Subscriber a limited, non-exclusive, non-transferable right to allow up to the number of Subscriber’s authorized users (“Users”) set forth in the Order Form to access and use the Subscription Services on a named-user basis during the Term (as defined below) solely for Subscriber’s internal business purposes (the “Subscription”). The subscription is not cancellable by Subscriber except for a termination pursuant to Section 7.2 of these Services Terms.
2.2. Restrictions. The Subscription Services constitute protected copyrighted material and valuable trade secrets of Tango. Accordingly, Subscriber will not: (i) authorize or permit use of the Subscription Services by persons other than its Users; (ii) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Subscription Services; (iii) use or access the Subscription Services for the purpose of building a competitive product; (iv) copy, frame, modify or create any derivative works of the Subscription Services (or any component, part, feature, function, user interface, or graphic thereof) or the associated documentation, except with the prior written consent of Tango or to the extent such restriction is prohibited by applicable law; (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Subscription Services is compiled or interpreted; (vi) use the Subscription Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offerings; (vii) perform or disclose any benchmark or performance tests of the Subscription Services without Tango’s prior written consent; (viii) perform or disclose any security testing of the Subscription Services or associated infrastructure without Tango’s prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (ix) remove or modify any program markings or any notice of Tango’s or its licensors’ proprietary rights; (x) use the Subscription Services in violation of applicable laws; (xi) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (xii) send or store malicious code in connection with the Subscription Services; (xiii) interfere with or disrupt performance of the Subscription Services or the data contained therein; (xiv) attempt to gain access to the Subscription Services or its related systems or networks in a manner not set forth in the applicable documentation for the Subscription Services; or (xv) cause or permit any Users or any other party to do any of the foregoing. Subscriber is responsible for its Users’ compliance with the terms of this Section.
2.3. Passwords. Tango will provide Subscriber with security keys, tokens, access codes, passwords and other credentials required to enable Subscriber’s Users with access to the Subscription Services. Subscriber is responsible for maintaining the security and confidentiality of its User’s login information and credentials for its subscription to the Subscription Services and is responsible for any use of the Subscription Services utilizing such information and credentials. Login credentials and passwords are assigned on a named user basis and may not be shared by multiple individuals, provided that, upon written notification to Tango, Subscriber may reassign credentials to new named Users (subject to the limitation on the total number of Users in the Order Form). Subscriber may not (i) permit login credentials, identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized Users, or (ii) permit access to the Subscription Services through a single identification or password code being made available to multiple users on a network.
2.4. Minimum Requirements. In order to use the Subscription Services, Subscriber must use a currently supported version of Internet Explorer, Google Chrome, Microsoft Edge or Firefox browsers, or mobile versions of Safari, Chrome and the then currently supported version of IOS or Android software. Tango bears no liability or responsibility if Subscriber cannot use the Subscription Services due to a failure to meet such minimum requirements. Additionally, Subscriber is solely responsible its and its Users’ connection to the Subscription Services.
2.5. Monitoring and Support. Monitoring and Support terms for the Subscription Services are available at https://tangoanalytics.com/support/
2.6. Configuration Change Requests. Subscriber may request changes to the configuration of the Subscription Services (e.g., attribution, list of values, templates, and reports), user provisioning and security, as well as data updates (each, a “Configuration Change Request”) via the Tango Support Portal, which Configuration Change Requests will be processed in accordance with the Monitoring and Support terms available at https://tangoanalytics.com/support/. Any Configuration Change Requests that would require custom coding or development, special implementation or otherwise would result in eight hours or more of work will require a mutually agreed Statement of Work pursuant to Section 3.
2.7. Service Level and SLA Credits. Tango will provide credits for any failure to meet the availability service level of 99.5% for the Subscription Services as described in more detail at https://tangoanalytics.com/SLA/
3. Professional Services. As requested by Subscriber, Tango will provide implementation, application branding and configuration services, report development, terminology and user interface customization, analytics services and such other professional services as may be set forth in a mutually agreed Statement of Work (“Professional Services”). Each Statement of Work will set forth the scope of the Professional Services and the associated fees. Additionally, Professional Services are subject to the additional terms applicable to the Professional Services located at https://tangoanalytics.com/services/
4. Data Results. As between Subscriber and Tango, Subscriber is solely responsible for the accuracy and quality of the data submitted, processed, or stored by Subscriber and Users using the Subscription Services (collectively “Subscriber Data”). Tango acknowledges that as between the Subscriber and Tango, the Subscriber Data is owned exclusively by Subscriber. The Parties agree that under no circumstances will Tango be responsible or have any liability for Subscriber’s or a User’s use of the Subscriber Data. Subscriber and each User is responsible for updating its own Subscriber Data. Some of the content made available through the Subscription Services is provided by third parties (“Third Party Data”). Subscriber must use such Third Party Data in compliance with licensing terms applicable to such Third Party Data. All information, data, documents and any other output results generated by queries, data feeds, and other use of and access to the Subscription Services by Subscriber (collectively “Results”) are the property of Subscriber. Tango may use the Results to provide and improve the Subscription Services, and may use and include de-identified, aggregated forms of Results as part of Tango’s services offerings, provided that the Results may not be segmented or used in a manner that is targeted to benefit any particular industry segment. Tango will have no responsibility for any decisions made on the basis of Results or for the completeness or accuracy of any predictive or analytical Results or for their usefulness for Subscriber’s purposes.
5. No Personally Identifiable Information. The Subscription Services are not designed or maintained in a manner to process, handle or protect any personally identifiable information or other sensitive data. To the extent that the parties wish to add services that involve the processing of personally identifiable information or other sensitive data, the parties may execute a Statement of Work to add such Services that (i) specifically identifies the types of personally identifiable information or other sensitive data to be provided to the Tango service and (ii) any additional terms applicable to such Services, provided that in the absence of such a Statement of Work, Subscriber must not provide personally identifiable information or other sensitive data to Tango or its services.
6. Security; Back-up and Disaster Recovery. Tango obtains an annual Service and Organization Controls (“SOC”) 1, type 2 Report as well as a SOC 2 Report and will implement the controls in those reports. Tango will provide Subscriber with a redacted copy of its most recent SOC 1 Report and SOC 2 Report upon written request. Tango only stores Customer Data in data centers which have a SOC 2 Report prepared annually. Tango will perform weekly full back-ups and daily incremental back-ups via electronic media of Subscriber Data stored on Tango’s servers, such that data can be restored as of the previous business day. Such back-ups will be stored off site. The backup storage is used to maintain disaster recovery capabilities sufficient to restore the data no later than one business day following a disaster.
7. Term and Termination.
7.1. Term. Subscriber’s Subscription to the Subscription Services will begin on the effective date of the Order Form (the “Order Form Date”) and continue for the initial term identified in the Order Form (the “Initial Term”). Unless otherwise indicated in the Order Form, upon the expiration of the Initial Term, the Subscription will automatically renew for consecutive periods of one year unless a Party gives notice of its intent not to renew to the other Party at least 90 days in advance of the applicable automatic renewal date of the Subscription. The Initial Term and any renewal terms together are the “Term.”
7.2. Termination for Breach. The Subscription may be terminated by either Party, subject to the Dispute Resolution procedures in Section 17.10, for the other Party’s material breach of its obligations under these Service Terms, but only if such breach is not cured within 30 days of the breaching Party’s receipt of written notice of the breach that describes the breach in reasonably sufficient detail. Tango may terminate the Subscription for (i) a delay in payment or nonpayment of fees that lasts more than 30 days from the date such payment was due; (ii) Subscriber’s or a User’s acts with respect to the Subscription Services that subject Tango to actual or potential civil or criminal liability, or (iii) any misuse of the Services by Subscriber, including unlawful use, or any violations of the restrictions set forth in Section 2.2.
7.3. Effect of Termination. Upon the termination or expiration of the Subscription, the rights and licenses that were granted to each Party under the Order Form or these Services Terms will cease except to the extent expressly provided otherwise herein. Except for a termination of the Subscription for Tango’s uncured material breach, Subscriber will make payment to Tango for all unpaid Services up to the Termination Date within 30 days of Subscriber’s receipt of Tango’s invoice. Upon written request, each Party will return to the other all originals and copies of all Confidential Information that has been exchanged hereunder, except as specifically provided herein.
7.4. Access following Termination; Archival Services. Subject to Subscriber’s payment of any fees owed as of the date of termination or expiration of the Subscription (the “Termination Date”), Subscriber:
- will be permitted to continue to access the Subscription Services for a period of 30 days after the Termination Date for the sole purpose of copying or downloading its Subscriber Data and any Results;
- may extend the access described above on a monthly basis for up to 120 days by paying Tango’s then-current subscription rates (provided that all fees are paid and the Subscription was not terminated by Tango pursuant to Section 7.2); and
- may request archival services from Tango which consist of Tango archiving Subscriber Data to storage media in a mutually-agreed format and forwarding such storage media to Subscriber. The fee for these archival services will be equal to two times the effective pro-rata monthly subscription fee.
8. Suspension of Service. Tango reserves the right, in its reasonable discretion, to suspend or terminate access to the Subscription Services by Subscriber if Tango reasonably believes that Subscriber’s use of the Subscription Services may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Tango to civil or criminal liability, or otherwise threatens the Subscription Services, or data therein, provided that such right will not obligate Tango to monitor or exert editorial control over Subscriber’s use of the Subscription Service. Tango and Subscriber will cooperate to expeditiously determine the solution to the issue causing Tango’s suspension of the Subscription Service. In order for Tango to exercise its rights pursuant to this Section 8, Tango must deliver to Subscriber written notice promptly after the allegedly violating representation or use is brought first to its attention and Subscriber must be given a reasonable period in which to remedy the alleged violation. Once the violation is remedied, Tango will restore access to the Subscription Service.
9. Fees; Expenses; Taxes. Subscriber will pay Tango for the subscription to the Subscription Services pursuant to the fees set forth in the Order Form or if no fees are set forth, at Tango’s then-current subscription rates. Tango will invoice Subscriber annually in advance for each subscription year for the Subscription Services beginning on the Order Form Date. Unless otherwise agreed in a Statement of Work, Tango will invoice Subscriber monthly for Professional Services rendered during the preceding monthly period. Unless otherwise stated in the Order Form, payment terms are 30 days from date of receipt of invoice. Past due balances are subject to interest equal to the lower of 1 ½% per month or the maximum rate allowed by law. Tango may, at its discretion, engage third parties to assist in the collection of past due accounts. Subscriber will be liable to Tango for all reasonable costs of third party collection activity, including attorneys’ fees, resulting from Subscriber’s past due account. Invoices not paid within 60 days may result in Tango restricting or removing access to the Subscription Services until such invoices are paid in full. Subscriber will reimburse Tango for all expenses incurred in the performance of the Professional Services (“Expenses”). Upon request, Tango will provide reasonable back-up documenting the Expenses. Expenses will be invoiced by Tango and such invoices will be payable in accordance with this Section 9. Subscriber will be responsible for any federal, state and local sales, use, excise, ad valorem, value-added, and other similar type taxes and duties (“Taxes”) imposed on the purchases of Services (including implementation where applicable). Tango will use commercially reasonable efforts to include any applicable Taxes on invoices. It is agreed that each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.
10. Tango Property. Tango owns all right, title and interest in and to (i) the Subscription Services (and any and all configurations, developments, modifications, and derivative works of the Subscription Services); (ii) any work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by Tango, Subscriber, either alone or with others, and whether completed or in-progress) created as part of the Professional Services, except to the extent such improvements are based on any Confidential Information of Subscriber; (iii) any materials provided by Tango to Subscriber or a User with respect to the Subscription Services, including but not limited to any documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Tango or its suppliers, such as text, graphics (including the underlying web-presentation code of the Subscription Services), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Tango to provide the Subscription Services to Subscriber, and (iv) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively “Tango Property”). The Subscription is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Tango Property are transferred to Subscriber as part of or in connection with the Subscription. Tango reserves all rights not expressly granted by these Services Terms and no licenses are granted by Tango to any party, whether by implication, estoppel or otherwise, except as expressly set forth in these Services Terms. Tango hereby grants to Subscriber a limited, non-exclusive, non-transferable license to use Tango Property developed as part of the Professional Services for that entity’s use of the Subscription Services solely for purposes of the using of the Subscription Services in accordance with the terms of these Services Terms during the Term. Any Tango Property related to Subscription Services will be deemed to constitute part of the Subscription Services and will be subject to all terms and provisions set forth in these Services Terms or otherwise applicable to the Subscription Services, including terms and provisions related to use rights and restrictions, ownership and distribution of the Subscription Services. To the extent that Subscriber or any User owns or obtains any copyright, patent, trade secret, or any proprietary rights in and to the Tango Property, Subscriber hereby assigns to Tango, its successors and assigns, and Subscriber will cause all Users to assign to Tango, its successors and assigns, all right, title and interest in and to the Tango Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the Tango Property. Subscriber will execute, and cause any User to execute, any documents in connection with such assignment that Tango may reasonably request.
11. Confidentiality. The Parties recognize that each Party may have access to confidential or proprietary information belonging to the other and each desires that any such confidential and proprietary information remain confidential. Each Party agrees that it will use commercially reasonable efforts to protect the confidentiality of information received from the other Party that the receiving Party knows or should know is the proprietary or confidential information of the disclosing Party (i) because it is marked as confidential; (ii) because the disclosing Party orally advised the other Party of the information that is confidential; or (iii) by virtue of the character of the information or the circumstances surrounding its disclosure (“Confidential Information”) using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. The foregoing will not prevent either Party from disclosing Confidential Information which belongs to that Party or (a) is in or enters the public domain without breach of these Services Terms and through no fault of the receiving Party; (b) the receiving Party was lawfully and demonstrably in possession of prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party’s Confidential Information; (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is approved by the other Party for disclosure. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to the requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of the requirement and coordinates with such other Party in an effort to limit the nature and scope of such required disclosure. Upon written request at the termination of the Subscription, all documented Confidential Information (and all copies thereof) owned by the requesting Party will be returned to the requesting Party or will be destroyed, with written certification thereof being given to the requesting Party, provided, however that Tango may retain Subscriber Data as necessary to provide the access and archival services contemplated by Section 7.4. The Parties acknowledge that disclosure of any Confidential Information would cause irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party will be entitled to injunctive relief against the other’s breach or threatened breach of this Section 11 as well as any other legal remedies that are available, without the need to post a bond.
12. Additional Representations and Warranties.
12.1. Tango Warranties. Tango represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under the Order Form and these Services Terms; and (ii) the Subscription Services: (a) will operate in material compliance with their documentation; (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty; and (c) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity.
12.2. Subscriber Warranties. Subscriber represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under the Order Form and these Services Terms; and (ii) the Subscriber Data and other materials provided by Subscriber: (a) do not and will not infringe or misappropriate the intellectual property rights of any third party; (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty; (c) will not be defamatory, libelous, unlawfully threatening or harassing; (d) will not be obscene or indecent; and (e) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity.
13. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THESE SERVICES TERMS ARE IN LIEU OF, AND TANGO SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SUBSCRIBER SPECIFICALLY ACKNOWLEDGES THAT TANGO, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT SUBSCRIBER’S SPECIFIC REQUIREMENTS WILL BE SATISFIED. SUBSCRIBER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.
14. Insurance. Tango will maintain, during the Term, the following levels of insurance, which may be satisfied through the combined limits of primary policies and excess policies:
(i) Commercial general liability insurance with a combined single limit of at least $2,000,000 per occurrence written on an occurrence basis;
(ii) Bodily Injury and Property Damage insurance with limits of at least $1,000,000 per occurrence Limit and $2,000,000 general aggregate;
(iii) Workers’ compensation (statutory) insurance that satisfies all statutory requirements and limits in the states in which Tango’s employees are engaging in work;
(iv) Employer’s liability with limits of at least $500,000 per occurrence;
(v) Professional liability/errors & omissions insurance with limits of at least $5,000,000 per occurrence; and
(vi) Cyber risk/privacy insurance with limits of at least $5,000,000 per occurrence and in the aggregate.
15.1. By Tango. Tango will indemnify, defend and hold Subscriber, its owners, officers, employees, agents, successors and assigns harmless from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from claims by any third party that (i) Subscriber’s use of the Subscription Services in accordance with these Services Terms and the associated documentation infringes or misappropriates the intellectual property rights of such third party, provided that Tango will have no obligation to defend, indemnify and hold Subscriber harmless for claims of infringement if: (a) Subscriber or a User modifies the Subscription Services; (b) Tango complies with the written designs or specifications supplied by Subscriber; (c) Subscriber or a User combines the Subscription Services with any products or services not provided or licensed by Tango; (d) Subscriber or a User fails to strictly adhere to Tango’s instructions for the use and maintenance of the Subscription Services, or (ii) are caused by Tango’s gross negligence or willful misconduct.
15.2. By Subscriber. Subscriber will indemnify, defend and hold Tango, its owners, officers, employees, agents, successors and assigns harmless from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) arising from claims by a User or any third party that (i) relate to a use of predictive or analytical Results; (ii) are based on or caused by unauthorized access to the Subscription Services using a Subscriber password or account obtained from Subscriber or a User; (iii) arise from Subscriber’s breach of Section 5; (iv) result from any failure by Subscriber to obtain any consents, authorizations or permissions necessary for Tango to access or use any Subscriber Data, software, systems, databases, trademarks, trade names, service marks, logos and other similar indicia of origin or other materials provided or made available by Subscriber (the “Subscriber-Provided Materials”); (v) the Subscriber-Provided Materials or other materials provided by a User, or Tango’s use thereof in connection with these Services Terms, infringe or misappropriate the intellectual property rights of such third party; or (vi) are caused by Subscriber’s or a User’s gross negligence or willful misconduct.
15.3. Procedure. It is further agreed that (i) the Party who is obligated to provide indemnification (the “Indemnifying Party”) will be notified in writing promptly by the Party seeking indemnification (the “Indemnified Party”) of any such claim or demand (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the Indemnified Party’s failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will use all commercially reasonable efforts to cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.
16. Limitations on Damages.
16.1. DISCLAIMER OF CERTAIN DAMAGES. EXCEPT FOR FEES PAYABLE BY SUBSCRIBER, EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 15, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR SUBSCRIBER’S BREACH OF SECTIONS 2.2 OR 5 OR MISAPPROPRIATION OF TANGO’S INTELLECTUAL PROPERTY RIGHTS, NEITHER TANGO NOR SUBSCRIBER WILL HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST DATA REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THE SUBSCRIPTION OR ANY STATEMENT OF WORK.
16.2. LIMITATION OF LIABILITY. EXCEPT FOR FEES PAYABLE BY SUBSCRIBER, EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 15, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR SUBSCRIBER’S BREACH OF SECTIONS 2.2 OR 5 OR MISAPPROPRIATION OF TANGO’S INTELLECTUAL PROPERTY RIGHTS, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THE SERVICES, WILL BE LIMITED TO THE AMOUNT PAID BY SUBSCRIBER TO TANGO FOR THE MOST RECENT ONE YEAR PERIOD OF THE TERM UP TO THE DATE SUCH LIABILITY AROSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), AND STRICT LIABILITY. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THE SUBSCRIPTION OR ANY STATEMENT OF WORK.
16.3. Applicability of Disclaimers and Limitations. The Parties agree that Tango has set the fees and entered into the Order Form in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
17.1. Non-Exclusive. The relationship created by the Order Form and described in more detail in these Services Terms is non-exclusive in all respects.
17.2. Rights and Survival. Except where specifically provided, termination of the Subscription or any Statement of Work will be without prejudice to any other rights that either Party may have at law or in equity. The following Sections of these Services Terms will survive expiration or termination of the Subscription or any Statement of Work: 2.2, 3, 4, 5, 7.3, 7.3, 8, 9, 10, 10, 11, 13, and 15 through 17.
17.3. Notices. Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, confirmed e-mail, or personal delivery to the intended recipient of the notice. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. Notice will be provided to Subscriber at the address provided in the Order Form and to Tango at 9797 Rombauer Rd. Suite 450, Dallas, TX, 75019. A Party may change a contact upon 10 days’ written notice to the other Party, which notice will contain the new contact information as set forth above.
17.4. Linked Terms. To the extent that additional terms and conditions are linked to or are to be incorporated by hyperlink text, reference or otherwise in these Services Terms (“Linked Terms”), such Linked Terms are incorporated into these Services Terms in their entirety by reference.
17.5. Entire Agreement. The Order Form, these Services Terms, the Linked Terms, and any mutually agreed Statements of Work for Professional Services (this “Agreement”) together constitute the entire agreement between Tango and Subscriber with respect to the subject matter hereof and supersede all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. The Parties anticipate that theyr may provide or exchange purchase orders, acknowledgments, confirmations, invoices or other documents relating to the subscription to the Subscription Services or Professional Services, which may contain terms or conditions that are different from, or in addition to, this Agreement. Each Party objects to the inclusion of any different or additional terms by the other Party in any document or communications, which terms will be of no force or effect. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Electronic signatures or signatures in the form of handwritten signatures in a facsimile transmittal or scanned and digitized images of a handwritten signature (e.g., scanned document in PDF format) shall have the same force and effect as original manual signatures.
17.6. Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Tango’s server, sabotage or criminal interference with the server or Subscription Services or any other causes beyond the control of either Party (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance to the extent that it is prevented, hindered or delayed by such causes. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance and to give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement.
17.7. Separate Parties; No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Tango, Subscriber or any User. Tango will perform the Services as an independent contractor. Neither Tango nor Subscriber is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
17.8. Right to Update. Tango reserves the right to make visual or functional modifications to the Subscription Services from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. Tango reserves the right to make such changes without prior notification to Subscriber. No such change will materially reduce the functionality of the Subscription Service.
17.9. Feedback. Tango has not agreed to and does not agree to treat as confidential any suggestion or idea provided by Subscriber or its Users regarding the Service (“Feedback”), and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Tango’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to Subscriber or its Users, or provide Subscriber or any User with any rights in the Services. Feedback does not include Subscriber Confidential Information or Subscriber Data.
17.10. Dispute Resolution. The Parties agree that if one of them believes that the other has breached or is about to breach this Agreement or Subscriber disputes a Tango charge appearing on a bill, the complaining Party will give immediate written notice to the other of the complaint. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint within 10 business days of the Party’s receipt of the complaining Party’s notice. If such negotiations do not reach a resolution, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT.
17.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision will be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement will remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of the Agreement.
17.12. Assignment. Neither Party may assign its rights and obligations under this Agreement without the prior written permission of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement in conjunction with a merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction. This Agreement will be binding on each Party’s successors and permitted assigns.
17.13. Governing Law and Venue. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of and venue in any federal or state court located within the borough of Manhattan, New York over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined only and exclusively in such courts. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought in such court, and any defense or right to move to dismiss or transfer any action brought in such courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
17.14. Attorney’s Fees. In the event of any dispute between the Parties concerning the terms and provisions of these Services Terms and the Order Form, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys’ fees.
17.15. Headings. The section headings used in this these Services Terms are for reference and convenience only and will not enter into the interpretation of these Services Terms.