Funnel General Terms and Conditions
BY USING THE SERVICE, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTANDS THESE GENERAL TERMS AND CONDITIONS (“GENERAL TERMS”). AS A CONDITION OF CUSTOMER’S USE OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THESE GENERAL TERMS. THE PERSON WHO ENTERS INTO THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT (I) SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THESE GENERAL TERMS, AND (II) CUSTOMER IS DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING AS A CORPORATION OR OTHER BUSINESS ENTITY. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Funnel and Customer agree as follows:
1. General
1.1 These general terms and conditions (the “General Terms”) shall apply to the delivery of the Service to Customer and Customer’s use thereof.
1.2 The following order of precedence shall be applied in the event of conflict or inconsistency between any terms and conditions of this Agreement: (i) the Order (defined below); (ii) schedules or exhibits included or referenced in these General Terms; (iii) these General Terms.
2. Definitions
Capitalized terms used in the Agreement shall have the following meaning:
“Agreement” means these General Terms and any Order referencing these General Terms, and any other schedules, addenda, supplements, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.
“Confidential Information” means any non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that (i) the Disclosing Party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood by the Receiving Party to be confidential given the nature of the information and the circumstances surrounding its disclosure. In addition to the foregoing, Confidential Information includes, with respect to Customer, the Customer Data, marketing and business plans and/or Customer financial information, and with respect to Funnel: (a) the Service and service offering terms, including, without limitation, all (i) computer software (both object and source code) and related Documentation or specifications, (ii) techniques, concepts, methods, processes and designs embodied in or relating to the Service, and (iii) all application program interfaces, system security and system architecture design relating to the Service; and (b) Funnel research and development, service offerings, pricing and availability.
“Customer” means the entity that has entered into the Agreement: (i) by execution of an Order; (ii) by having started using the Service after signing up for it at Funnel’s website; or (iii) by any other legally binding method of acceptance of the Agreement.
“Customer Data” means any Customer data that is imported into the Service or that is generated from such Customer data as a result of Customer’s use of the Service.
“Data Destination” means a destination provided by Customer or Customer’s third party service provider to which Customer Data is exported from the Service.
“Data Source” means a source provided by Customer’s third party service provider from which Customer Data is imported to be used in the Service.
“Documentation” means Funnel’s technical and functional documentation for the Service, and the importing and exporting of data from the Service, respectively, prevailing at the time, which is made available to Funnel’s customers.
“Effective Date” means the earlier of (i) the start date for the Service set out in the Order, or (ii) the date Customer begins using the Service.
“Flexpoints” means units of measurement of available capacity of features in the Service such as Data Sources and Data Destinations. Details of Customer’s permitted use capacity is indicated by available Flexpoints, as visualized in the user interface of the Service. Flexpoints are solely used to indicate capacity, have no cash value and are not redeemable for cash, any other equivalent currency, or discounts. Available Flexpoints expire at the end of the Subscription Period, cannot be reduced or refunded during a Subscription Period, nor rolled over to any renewal subscription period.
“Funnel” means the Funnel entity designated in the Order, or if no such entity is listed: (i) Funnel AB, reg. no. 559062-1263, with its principal place of business at Klarabergsgatan 29, 111 21 Stockholm, Sweden; or (ii) if Customer’s principal place of business is located in the Americas, Australia or New Zealand, Funnel, Inc., with its principal place of business at 175 Federal St, Floor 11, Boston, MA 02110 USA.
“Free Use Period” means a trial or any period during which the Service is provided free of charge, including but not limited a Free Subscription (defined below).
"Intellectual Property Rights” means any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other similar rights (whether or not registered or capable of registration and whether subsisting in any part of the world).
“Media Agency” means a company that is directly or indirectly using the Service to provide media services or products to its clients.
“Order” means the written order form or order confirmation provided by Funnel (including, if Customer is ordering the Service online, a registration website) entered into by Funnel and Customer containing the pricing, usage details, features, Plan, Subscription Period, and referencing these General Terms.
“Party” or “Parties” mean, respectively, Funnel or Customer, or Funnel and Customer together.
“Plan” means the applicable plan for Customer’s use of the Service, as specified in the Order and/or the user interface of the Service.
“Service” means the Funnel software as a service for measurement, analysis and reporting of advertising, marketing, and other business data via Funnel's group company websites.
“Subscription Period” means the then current duration of Customer’s subscription to use the Service, as specified in an applicable Order and/or the Service user interface.
“User” means any Customer employee who Customer provides account credentials to access and use the Service.
The following definitions shall only apply if Customer is enrolled in a legacy AdSpend pricing Plan, or if Customer has purchased Funnel Measurement:
“Advertising Spend” means Customer’s monthly cost for the advertising for which the Service will be used.
“Digital Advertising Data Source” means a Data Source whose data derives from digital advertising on the Internet.
“Other Data Sources” means another Data Source than a Digital Advertising Data Source.
3. Use of the Service
3.1 Provision of the Service. Subject to Customer’s payment of the applicable fees, Funnel shall make the Service available to Customer in accordance with the Order during the Subscription Period and hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to permit Users to remotely access and use the Service solely for Customer’s own internal business purposes, as permitted by and subject to the Documentation and the terms of the Agreement. Any charges from a Data Source or a Data Destination shall be Customer’s responsibility (e.g. as part of the relationship between Customer and such third party). If Customer is a Media Agency, Customer may use the Service to provide services to its designated clients, provided that Customer can only share data to Customer’s Data Destination(s).
3.2 Usage and Capacity. Customer may expand or extend its use of the Service by procuring more Flexpoints, additional usage rights, or products and paying for any applicable fees, or as otherwise quoted by Funnel. In the event Customer uses the Service to process data volumes exceeding the Service’s fair usage processing limits described in the Documentation, Funnel reserves the right to charge Customer for such increased data volume.
3.3 Restrictions. Except as explicitly stated in this Agreement, Customer shall not: (i) sublicense, license, sell, lease rent or otherwise make the Service available to a third party; (ii) circumvent or disclose the user authentication or security of the Service or any host, network, or account related thereto; (iii) share non-public Service features or content with any third party; (iv) copy any ideas, features, functions or graphics of the Service or translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Service; (v) use the Service to infringe the Intellectual Property Rights of any entity or person; (vi) interfere with or disrupt the Funnel software or Funnel systems used to provide or host the Service, or other equipment or networks connected to the Service; (vii) access the Service in order to build a competitive product or service, or to build a product using similar ideas, features, functions or graphics of the Service; or (viii) violate Funnel’s Acceptable Use Policy found here: https://funnel.io/funnel-acceptable-use-policy.
3.4 Change or Modification of the Service. Funnel may change or modify the Service at any time, provided that during the Subscription Period, Funnel shall not materially degrade or eliminate any of the core functionalities of the Service. Customer shall be automatically entitled during the Subscription Period to any functionality that is (as determined by Funnel, acting reasonably) a direct replacement or succession of any functionality of the Service without any payment of additional fees. For the avoidance of any doubt, Customer shall not be entitled to any functionality that is beyond the scope of an Order. Where Funnel has materially degraded or eliminated any core functionality of the Service and no equivalent functionality is otherwise made available to Customer, then Customer may terminate the Agreement within thirty (30) days of the change going into effect and shall be entitled to a pro rata refund of any prepaid fees remaining for the Subscription Period.
3.5 Setup and Support. Funnel shall provide setup and support according to the applicable Plan.
3.6 Information Security. Funnel undertakes to use industry standard practices for information security (such as password protection, encryption, firewall protection, logging, and monitoring) when providing the Service. Further details about Funnel’s information security work are available at https://funnel.io/funnel-information-security-overview.
3.7 Free Subscriptions. Funnel may offer the Service on a free-of-charge basis, subject to certain restrictions and limitations (“Free Subscription”). Free Subscriptions are limited to the number of workspaces, FlexPoints, and features designated in the user interface of the Service, or as otherwise outlined in an Order. The establishment of multiple Free Subscriptions for a single Customer is not permitted, nor is Customer permitted to establish any Free Subscription in addition to Customer’s paid subscription for the Service, if any. Funnel reserves the right to discontinue any Free Subscription at any time for any reason, without any obligation or liability hereunder. Funnel is not obligated to provide any technical support or maintenance services for any Free Subscriptions. There is no guarantee that features or functions of the Free Subscription will be available or will be the same should Customer decide to upgrade its account from a Free Subscription to a paid subscription for the Service.
4. Customer’s Responsibilities and Obligations
4.1 Customer Data. Customer is solely responsible for the accuracy, quality, and integrity of the Customer Data. Customer represents and warrants that it has collected and shall maintain and process all Customer Data in compliance with all applicable laws, including but not limited to privacy and data protection laws and regulations, and any other terms and conditions applicable to the Customer Data (i.e. as required by a Data Source). Customer is solely responsible for determining the suitability of the Service, or the results thereof, for Customer's business.
4.2 Use of Data. In providing the Service, Funnel analyzes data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (“Usage Data”) and uses Usage Data to provide support services to Customer, including carrying out diagnostic and corrective measures, to improve and enhance the Service (i.e. proactive support services), for the benefit of Customer. Further, after anonymization and/or aggregation (during and after the Subscription Period), Funnel shall be entitled to (i) subject to Section 7 (Confidentiality), use Usage Data to generally improve and enhance the Service and for development, diagnostic and corrective purposes in connection with the Service and other offerings, and (ii) disclose Usage Data solely in aggregated or other de-identified form in connection with its business.
4.3 Customer Account. Customer shall designate one of its Users to be the main point of contact with Funnel for the management and support of the Service. Such contact will be responsible for establishing and managing Customer’s use of the Service, including the creation of User authentication credentials to access Customer’s account. Customer is solely responsible for maintaining the status of its Users and will safeguard all User authentication credentials. Customer is responsible for all activities that occur under its account or by its Users, including without limitation unauthorized access. Customer will notify Funnel immediately if Customer believes an unauthorized third party may be using Customer’s account or if any of Customer’s Users’ authentication credentials are lost or stolen.
4.4 User Information. When fulfilling its obligations under the Agreement, Funnel will collect and process User information which is necessary to administrate Customer’s access and use of the Service and which may constitute personal data (e.g. name, email addresses, authentication credentials). Funnel will be the controller and responsible for the processing activities of User information and Customer shall ensure that its Users, who may be subject to such processing, are duly informed about and consent to the processing. Funnel’s privacy notice for its processing of User personal data in capacity of controller is available at https://funnel.io/privacy.
4.5 Suspension. Funnel may, without fault and in addition to such other remedies as Funnel may have, suspend Customer’s right to access or use any portion of the Service immediately without advance notice to Customer if (i) Funnel determines that Customer’s or its Users’ use of the Service does not comply with Section 3.3, or (ii) Customer fails to pay the fees when due. Funnel will notify Customer of the reason for such suspension and may terminate the Agreement if Customer fails to rectify such use within thirty (30) days from notification by Funnel.
5. Ownership of Intellectual Property Rights
5.1 Funnel IP. Funnel, or its licensors, own all right, title, and interest in and to any and all Intellectual Property Rights in and to the Service and Documentation, including without limitation all software, integrations, technology, and other rights used to provide the Service, and all graphics, user interfaces and documentation, and any improvements, design contributions, derivative works, knowledge, know-how or processes related thereto, and/or provided hereunder. Except for the limited rights expressly granted herein, the Agreement does not transfer from Funnel any proprietary right or interest in the Service. All rights not expressly granted to Customer in the Agreement are reserved to Funnel and its licensors. Customer may provide suggestions, ideas, corrections, or other feedback regarding the Service to Funnel. Customer grants Funnel a worldwide, perpetual, royalty-free license to use, reproduce, publish, and distribute such feedback to improve the Service.
5.2 Customer IP. Customer shall own all right, title and interest in and to any Intellectual Property Rights in and to the Customer Data. Except for the limited rights expressly granted herein, the Agreement does not transfer from Customer any proprietary right or interest in the Customer Data. All rights regarding Customer Data not expressly granted to Funnel in the Agreement are reserved to Customer.
6. Fees and Payment
6.1 Fees. Except as expressly set forth in this Agreement, the Service is non-cancellable and all fees are non-refundable. Customer shall have no right to withhold or reduce fees under the Agreement or set off any amount against fees owed for any reason, including for alleged defects in the Service.
6.2 Payment. Customer shall pay to Funnel the fees for the Service provided hereunder, in the amount set forth in the Order, by (i) recurring credit card charges made on the first day of each Subscription Period, or (ii) invoice in advance of the Subscription Period within thirty (30) days from the invoice date. Without limiting any other rights or remedies Funnel may have, any amount not paid when due will be subject to interest equal to the lesser of (i) 1.5% per month of the overdue amount, or (ii) the highest lawful rate allowed by applicable law. Such interest shall accrue daily from the due date until Funnel receives payment of the overdue amount. In addition, Customer shall reimburse any costs or expenses (including, but not limited to, any penalties, charges or legal and other reasonable professional costs and expenses) incurred by Funnel to collect any overdue amount.
6.3 Taxes. All fees are exclusive of taxes, levies, and duties, and Customer shall be responsible for payment of all such taxes, levies, duties, value-added tax (VAT), sales tax, withholding, or similar taxes. Funnel may calculate taxes based on the billing information Customer provides.
6.4 Fee Increase. Funnel may increase the fees for the Service, which will be effective at the beginning of any renewal Subscription Period. Funnel will notify Customer of any increase prior to it becoming effective; notice may be in the form of an invoice.
7. Confidentiality
7.1 Restrictions on Use and Disclosure. The Receiving Party shall not use or reproduce in any form the Disclosing Party’s Confidential Information except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends that appear on the original. With respect to the Disclosing Party’s Confidential Information, the Receiving Party (i) shall protect all Confidential Information using the same degree of care the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care, and (ii) shall not disclose any Confidential Information to any third party other than to individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. The Disclosing Party’s Confidential Information disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder.
7.2 Exclusions. Confidential Information does not include information that the Receiving Party can establish: (i) has entered the public domain without the Receiving Party’s breach of any confidentiality obligation owed to the Disclosing Party; (ii) has been rightfully received by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to the Receiving Party without confidentiality restrictions prior to first receipt by the Receiving Party from the Disclosing Party; or (iv) has been independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.3 Disclosure Required by Law. If the Receiving Party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
8. Warranties
8.1 Service. Funnel warrants that the Service will substantially conform to the material specifications stated in the Documentation. The foregoing warranty shall not apply: (i) where the Service is not being used in accordance with the Agreement and/or any Documentation; (ii) to any non-conformity caused by third party products, content or service that are not part of the Service (e.g. a Data Source or Data Destination or a connection thereto); or (iii) during any Free Use Period. Subject to Section 8.3, Customer’s sole and exclusive remedy, and Funnel’s entire liability for breach of the limited warranty in this Section 8.1, shall be correction of the warranted non-conformity or, if Funnel fails to correct the warranted non-conformity after using reasonable commercial efforts, Funnel may terminate access to the non-conforming Service and refund the prorated fees paid by Customer for the Service for the remainder of the Subscription Period (starting on the date Customer reported the non-conformity).
8.2 Viruses. Funnel warrants that it shall exercise commercially reasonable efforts designed to keep the Service free of all computer viruses, Trojan horses, and comparable malicious code intended to harm Customer’s systems (collectively, “Virus”), provided that Funnel shall not be liable for breach of this warranty for any such Virus that is placed on the Service by Customer or its Users or any third party.
8.3 Non-conformity Notice. In case of any non-conformity described in this Section 8, Customer shall provide Funnel with prompt written notice, within thirty (30) days from Customer’s discovery, or when it reasonably should have discovered, such non-conformity.
8.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS OR STATEMENTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT. FUNNEL DOES NOT WARRANT ANY RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH THE SERVICE OR OTHER MATERIALS PROVIDED UNDER THE AGREEMENT, OR THAT THE SERVICE WILL BE SECURE, UNINTERRUPTED, FREE OF HARMFUL COMPONENTS, OR ERROR FREE.
9. Third Party Indemnification
9.1 Claims Brought Against Customer. Funnel shall defend (at its sole expense) Customer against claims brought against Customer by any third party alleging that Customer’s use of the Service, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of any third party Intellectual Property Rights. Funnel will pay damages finally awarded against Customer with respect to such claims and will pay reasonable attorney’s fees in connection with such defense. This obligation of Funnel shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service not provided by Funnel, or during any Free Use Period.
9.2 Intellectual Property Claim Remedies. In the event a claim under Section 9.1 is made or in Funnel’s reasonable opinion is likely to be made, Funnel may, at its sole option and expense: (i) procure for Customer the right to continue using the Service under the terms of the Agreement; or (ii) replace or modify the Service to be non-infringing without a material decrease in functionality. If Funnel provides written notice to Customer that the foregoing options are not reasonably available, Funnel or Customer may terminate the Agreement and Funnel shall refund to Customer all prepaid fees prorated for the remainder of the Subscription Period after the date of termination.
9.3 Claims Brought Against Funnel. Customer shall defend (at its sole expense) Funnel and its licensors against claims brought against Funnel by any third party arising from or related to the Customer Data. Customer will pay damages finally awarded against Funnel with respect to such claims and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer or by the conduct of a third party using Customer’s access credentials.
9.4 Conditions. The obligations under this Section 9 are conditioned on (i) the indemnified Party timely notifying the indemnifying Party in writing of any such claim, provided however that the indemnified Party’s failure to provide or delay in providing such notice shall not relieve the indemnifying Party of its obligations under this Section 9 except to the extent such failure or delay prejudices the defense, (ii) the indemnifying Party having the right to fully control the defense and/or settlement of such claim, and (iii) the indemnified Party reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on, or admission of liability by, the indemnified Party. The indemnified Party may appear, at its own expense, through counsel reasonably acceptable to the indemnifying Party. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
9.5 Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE PROVISIONS OF THIS SECTION 9 STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF A PARTY TO THE OTHER PARTY, AND IS THE OTHER PARTY’S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10. Term and Termination
10.1 Term. The term of the Agreement shall begin on the Effective Date and shall continue for the Subscription Period, unless terminated by one of the Parties in accordance with the Agreement. Unless Customer provides notice of termination at least thirty (30) days prior to the end of the then current Subscription Period, the Subscription Period will renew automatically for an additional time period corresponding to the prior Subscription Period.
10.2 Termination for Cause. Either Party may terminate the Agreement for any material breach by the other Party via written notice, effective in thirty (30) days unless the other Party within such time period cures such breach.
10.3 Effects of Termination. Upon termination of the Agreement, Customer shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control.
10.4 Surviving Sections. Any provision of the Agreement that must survive to fulfill its essential purpose shall survive termination or expiration of the Agreement.
11. Limitation of Liability
11.1 Liability Not Excluded. Nothing in the Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence; or for fraud or fraudulent misrepresentation; for gross negligence or willful misconduct; or any other liability that may not be excluded or limited by law.
11.2 Exclusion of Liability. SUBJECT TO SECTION 11.1, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, NOR FOR DAMAGES FOR LOSS OF DATA, GOODWILL, DIRECT OR INDIRECT PROFITS, INVESTMENTS, INTERRUPTION IN USE, AVAILABILITY OF DATA, STOPPAGE OF ANY WORK, OR IMPAIRMENT OF OTHER ASSETS, WHETHER FORESEEABLE OR UNFORESEEABLE OR EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, AND WHETHER THE CLAIM OR CAUSE OF ACTION IS FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
The following terms apply for the Free Use Period: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE USE PERIOD (I) THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY, (II) FUNNEL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, AND (III) FUNNEL SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE USE PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE FUNNEL’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING THE FREE USE PERIOD SHALL NOT EXCEED $100.
11.3 General Limitation of Liability. Subject to Section 11.1, 11.2, and excluding Section 6 (Fees and Payment), the aggregate liability of each Party to the other Party, or any third party in connection with the Agreement, shall not exceed the annual fees payable for the Service under the Agreement.
12. Miscellaneous
12.1 No Partnership. The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created hereby. Notwithstanding any other provision in the Agreement, nothing in the Agreement shall create or confer (whether expressly or by implication) any rights or other benefits in favor of any person not a party hereto.
12.2 Collaboration Partners and Publicity. Customer agrees to Funnel sharing Customer’s name with Funnel's collaboration partners, subject to appropriate confidentiality provisions. Further, and provided that a Party complies with any trademark usage requirements notified to it by the other Party, each Party may refer to the other Party as a customer (for Funnel) and a vendor (for Customer) and use the other Party’s logo as part of such reference. Upon execution of the Agreement, Funnel may either (i) issue a press release announcing the relationship between Funnel and Customer, or (ii) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed. Customer agrees to be a reference account for Funnel, provided however that Funnel will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls.
12.3 Data Protection.
12.3.1 These General Terms incorporate the Funnel GDPR Data Processing Agreement, available at https://funnel.io/funnel-gdpr-data-processing-agreement, (“GDPR DPA”) to the extent Customer processes Personal Data (as defined in the GDPR DPA) in the Service.
12.3.2 These General Terms incorporate the Funnel CCPA Addendum, available at https://funnel.io/funnel-ccpa-addendum, (“CCPA Addendum”) to the extent Customer processes Personal Information (as defined in the CCPA Addendum) in the Service.
12.4 Force Majeure. Any delay or non-performance of any provision of the Agreement caused by conditions beyond the reasonable control of the performing Party shall not constitute a breach of the Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
12.5 Severability; Waiver. If a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted or substituted with an alternative provision to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect. Neither Party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
12.6 Assignment. Neither Party may assign any of its rights or obligations under the Agreement without the prior written consent of the other, which will not be unreasonably withheld, conditioned or delayed, however Funnel may assign or delegate some or all of its rights and obligations under the Agreement to any of its affiliates, or to an entity as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.7 Subcontractors. Funnel shall be entitled to engage subcontractors for the provision of the Service and for actions carried out by Funnel in connection with the provision of the Service (as described in Funnel’s published documents) without Customer’s prior consent and shall be responsible under this Agreement for all acts and omissions of subcontractors, as for its own acts and omissions.
12.8 Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Funnel and Customer related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are superseded by the Agreement and the Parties disclaim any reliance on any such representations, discussions and writings. The Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions, which may appear on any purchase order or vendor onboarding form furnished by Customer, and any additional terms and conditions in any such documents shall have no force and effect, notwithstanding Funnel’s acceptance or execution thereof.
12.9 Amendment. Funnel may amend the General Terms from time to time by posting the amended version of the General Terms at its website. Such amended General Terms shall be deemed accepted by Customer and become effective (i) upon posting, where the amendments are made to comply with mandatory law, or (ii) at the start of the next Subscription Period for any other amendments. Customer may sign up for notifications of any material amendments to the General Terms at https://funnel.io/general-terms-and-conditions/notifications.
12.10 Notices. Any notice required to be given by either Party in writing under the Agreement shall be sent via email to the email address of the recipient set forth in the Order (or to such other email address of the recipient notified to the sender by the recipient) and shall be deemed to have been duly received on the next working day unless an “out of office” or similar automated or undeliverable message is received, in which case it will be upon the date of confirmation of receipt from the notified Party. When sending a notice to Funnel, Customer shall send a copy to legal@funnel.io.
13. Dispute Resolution
13.1 Settlement by Good-Faith Discussions. All disputes arising out of or in connection with the Agreement shall be attempted to be settled by good-faith negotiations between senior management of each Party. Such negotiations shall commence within two (2) weeks from the date of written request from a Party to the other. In the event that negotiations do not resolve the dispute within one (1) month from said written request, a Party may proceed as set forth in Section 13.2. Commencement of any dispute resolution process shall not relieve either Party from its continued duties and obligations under the Agreement, including but not limited to any payments due.
13.2 Governing Law and Jurisdiction; Jury Trial Waiver.
13.2.1 If Funnel AB is the party to the Agreement: Subject to Section 13.1, the Agreement and any dispute or claim arising therefrom shall be interpreted, construed, and enforced in all respects in accordance with Swedish law, without regard to its conflict of law principles, and shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the proceedings shall be English. The arbitration award shall be final and binding upon the Parties.
13.2.2 If Funnel, Inc. is the party to the Agreement: Subject to Section 13.1, the Agreement and any dispute or claim arising therefrom shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Delaware, without regard to its conflict of law principles and the Parties hereby accept the exclusive jurisdiction of the federal and state courts located in the State of Delaware. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE AGREEMENT.
13.3 Confidentiality. The confidentiality undertaking in Section 7 (Confidentiality) shall apply to any formal proceedings hereunder, including any settlement, award, or judgement.
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Last Updated: July 12, 2024