PLEASE CAREFULLY READ AND REVIEW THIS SELF-SERVE AGENCY PARTNER AGREEMENT ("AGREEMENT"). PLEASE ENSURE THAT YOU READ THIS AGREEMENT, INCLUDING ALL DOCUMENTS INCORPORATED BY REFERENCE. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR OTHERWISE ELECTRONICALLY INDICATING ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THE AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT: (A) YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT; (B) YOU HAVE READ AND UNDERSTAND THE AGREEMENT; AND (C) YOU AGREE, ON BEHALF OF SUCH ENTITY, TO THE AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY (“AGENCY PARTNER”). AGENCY PARTNER AND CLOUDFLARE, INC., (“CLOUDFLARE”) ARE EACH A “PARTY” AND COLLECTIVELY “PARTIES” TO THIS AGREEMENT.
APPOINTMENT AS AGENCY PARTNER.
Appointment. Subject to the terms and conditions of this Agreement, Cloudflare hereby appoints Agency Partner, and Agency Partner hereby accepts such appointment, as a non-exclusive provider of subscriptions to Cloudflare’s Free, Business and Pro subscription plans (“Services”) as described on the self-serve plan webpage located at https://www.cloudflare.com/plans/ (“Self-Serve Plans Webpage”) to Agency Partner’s customers (“End Customer(s)”) generally for which Agency Partner has purchased month to month subscriptions (“Subscription(s)”) orderedthrough Cloudflare’s application program interface (“API
”) for provision to End Customers. Unless otherwise agreed to by the Parties, Agency Partner will manage the Services on behalf of its End Customers receiving the Services through the API.
Rights Granted. For the duration of the Term, Cloudflare grants to Agency Partner a non-exclusive, non-transferable right to: (i) use the Services solely for the purpose of (a) managing the provision of, access to, and use of subscriptions for one or more root domains (“Website(s)”), including any subdomain thereof, or any internet connected application that are owned and/or operated by Agency Partner on behalf of or for the benefit of End Customer(s) (collectively, “Managed Internet Properties”); (b) demonstrating and marketing the Services to potential End Customers; and (c) providing training and support services to End Customers; and (ii) reproduce the documentation made available by Cloudflare, solely as necessary to exercise the rights granted in the preceding sub-clause (i).
Access to Services; Service Terms. Cloudflare will grant access to the Services to Agency Partner solely to benefit End Customers’ internal business purposes only and solely pursuant to Cloudflare’s “
Service Terms” consisting of the Cloudflare Self-Serve Subscription Agreement located at https://www.cloudflare.com/terms/, including all documents referenced therein, as may be updated by Cloudflare from time to time, and such Service Terms shall govern the Agency Partner’s use of the Services, except as otherwise modified by this Agreement. For the purposes of this Agreement, any reference in the Service Terms to “Customer” shall mean Agency Partner, and any sections related to payments and invoicing in the Service Terms do not apply. Agency Partner will promptly notify Cloudflare of any breach of the Service Terms and will assist Cloudflare to enforce its terms and conditions.
Restrictions. Agency Partner will not, nor permit any third party to: (i) reverse engineer, decompile, or disassemble the Services; (ii) modify the Services or any documentation; (iii) distribute, sell, sublicense or otherwise transfer or provide access to the Services to any third party other than as Subscriptions permitted by this Agreement; (iv) remove, amend, obscure, or modify any product markings or proprietary rights notices of Cloudflare or its licensors; (v) “white label” the Services, or present the Services in any way that obscures the fact that Cloudflare is the owner and provider of the Services; (vi) share access to or permit any person to access the Services or Agency Partner’s API Key other than Agency Partner’s authorized employees managing Subscription(s); (vii) use the API for any purpose other than to manage Subscriptions; and (ix) substitute or replace Managed Internet Properties. Agency Partner will be permitted to add domains to each group of domains within a specific multi-user account which has a discrete set of logins but will not be able to move domains from one such group to another. Such group structure shall exist for the term of the Subscription.
Non-Exclusiveness. Nothing under this Agreement shall prohibit Cloudflare from entering into any reseller, services or other agreement with any party anywhere in the world either during or after the Term.
Intellectual Property. “Intellectual Property Rights” means any and all now known or hereafter existing worldwide: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing. As between Cloudflare, Agency Partner and End Customers, Cloudflare and its licensors own all right, title, and interest in the Services, the underlying technology, related documentation and all Intellectual Property Rights therein. All rights and licenses in and to the Services not expressly granted to Agency Partner under this Agreement are reserved by Cloudflare and its licensors. Agency Partner will use its reasonable efforts to protect Cloudflare' Intellectual Property Rights and will promptly report to Cloudflare any infringement or other violation of such rights of which Agency Partner becomes aware.
Other Obligations. Agency Partner shall be responsible for the deployment and management of subscribed Services as well as the correct billing of the End Customer and any related collections efforts. Agency Partner will be responsible for timely onboarding of End Customer onto Cloudflare Services.
SUBSCRIPTION REQUIREMENTS
End Customer Program Limitations. Agency Partner shall not provide Services or offer Subscriptions to any End Customer that (i) has revenue greater than $20 million USD including parent and all subsidiaries; (ii) exceeds more than 3TB bandwidth or 100 million HTTP requests; (iii) has access to the Cloudflare services dashboard; (iv) receives support directly from Cloudflare; or (v) fails to meet any other criteria that Cloudflare may require from time to time, in Cloudflare’s sole discretion. If a Agency Partner onboards an End Customer in violation of this Section or if End Customer subsequently meets the limitations set forth in this Section after onboarding with Agency Partner, Agency Partner shall offboard such End Customer and facilitate the transition of such End Customer to a Cloudflare PowerUP partner within forty-five (45) days of written notice by Cloudflare or otherwise mutually agreed upon by the parties in writing, subject to Section 7 Term and Termination of this Agreement.
Subscription Orders
Orders Agency Partner may submit electronic requests for new Subscriptions through the API using the Agency Partner’s unique identifier assigned to the Agency Partner that allows Agency Partner to access the API (“API Key”). Unless Agency Partner promptly notifies Cloudflare of a third party’s unauthorized use of Agency Partner’s API Key and cooperates with Cloudflare to identify and halt such third party’s use, Agency Partner is solely responsible for all activity that takes place using Agency Partner’s API Key
Services Integration. Agency Partner will install Cloudflare supporting software as directed by Cloudflare, in order to ensure that the IP addresses of visitors are properly reported for all Managed Internet Properties. Agency Partner will ensure that Cloudflare’s IP address ranges are not blocked by any firewall or abuse software and will promptly contact Cloudflare if any abuse is detected from the Cloudflare network. Cloudflare reserves the right to provision new IP address ranges at Cloudflare’s discretion
Subscription Term; Renewals; Termination. Each Subscription will automatically renew on a month to month basis until such Subscription is terminated as provided for herein (“Subscription Term”). Agency Partner may cancel any Subscription through the API at any time, using the Agency Partner’s API Key. Agency Partner’s cancellation of a Subscription prior to the end of the then-current Subscription Term for such Subscription will not entitle Agency Partner to a refund or credit of any Fees paid or payable to Cloudflare for that Subscription Term.
END CUSTOMER SUPPORT.
Agency Partner Support. Unless Agency Partner and Cloudflare mutually agree otherwise in writing, Agency Partner will receive support through Cloudflare’s online support portal, currently located at https://support.cloudflare.com/hc/en-us. For the avoidance of doubt, Cloudflare will not provide phone or email support to Agency Partner or End Customers.
Agency Partner Abuse Process. If Cloudflare receives a notice of alleged copyright infringement or a complaint of abuse that relates to a Managed Internet Properties associated with an End Customers (each, a “Complaint”), Cloudflare will forward such Complaint to Agency Partner, which will promptly forward the Complaint to the applicable End Customer and such End Customer’s hosting provider, if not the same as Agency Partner.
MARKETING.
Cloudflare Marketing Collateral. Agency Partner may reproduce and use the marketing materials Cloudflare makes available to Agency Partner (if any) solely for the purposes of this Agreement. Agency Partner may translate marketing materials into local language(s) (“Translations”), and use such Translations for purposes of this Agreement. The Translations will be the Intellectual Property of Cloudflare. If Agency Partner is deemed to acquire any rights in the Translations, Agency Partner hereby assigns any and all rights (including all Intellectual Property Rights) related to the Translations to Cloudflare. If Agency Partner is legally prohibited from assigning the aforementioned rights, Agency Partner hereby grants Cloudflare, a worldwide, royalty free, fully paid up, irrevocable, perpetual, and fully sublicensable license to copy, perform, distribute, and make derivate works of the Translations.
Limited Trademark License. Subject to the terms of this Agreement, Cloudflare hereby grants to Agency Partner a non-exclusive, non-transferable, royalty-free, and fully paid license (“License”) to use Cloudflare’s proprietary trademarks, service marks, and logos (“Marks”) during the Term, solely in connection with promoting and advertising the Services. Agency Partner will use Marks in the form provided, and in conformance with any guidelines and usage policies provided by Cloudflare (including, without limitation, those set forth at https://www.cloudflare.com/trademark/). Agency Partner (i) acknowledges Cloudflare’s exclusive ownership of Marks; (ii) agrees not to take any action inconsistent with such ownership; and (iii) will cooperate in any action (including the conduct of legal proceedings) which Cloudflare deems necessary or desirable to establish or preserve Cloudflare’s rights in and to Marks. Cloudflare may terminate this License immediately upon notice if, in Cloudflare’s reasonable discretion, Agency Partner’s use of Marks tarnishes, blurs, or dilutes the quality associated with Marks or their goodwill.
FEES AND PAYMENTS
Fees. From the date that the Service is first made available to Agency Partner for use (“Service Date”) of a Subscription, and continuing throughout the applicable Subscription Term, Agency Partner will pay to Cloudflare fees for the Subscription(s) (“Fees”). Such Fees are based on the prices set forth on the Self-Serve Plans Webpage. Cloudflare may, in its sole discretion, modify the Fees for Subscriptions by updating the pricing located on the Self-Serve Plans Webpage. The modified Fees will apply to all new and then existing Subscriptions immediately thereafter. Agency Partner is free to determine the prices it will charge to End Customers for Subscriptions, without consultation with Cloudflare.
Payment Terms. For each Subscription, Agency Partner will issue a monthly electronic payment for the applicable Fees to Cloudflare. The initial payment for each Subscription will include the Fees for both the then-current month and for the following month. Payments will be due to Cloudflare irrespective of whether Agency Partner has received payment from End Customer(s). Cloudflare may, in its sole discretion and without liability or terminate any Subscription for which Cloudflare has not received payment of all invoiced Fees or suspend such Subscription until such Fees and any costs of collection are paid in full.
Taxes. Agency Partner is responsible for all taxes or duties, including, without limitation, sales, use, value-added, royalty, or other withholding taxes imposed by any government entity for Subscriptions, excluding taxes based on Cloudflare’s net income (collectively, the “Taxes”), and, unless Agency Partner has provided a valid exemption certificate, Agency Partner will promptly pay any and all Taxes associated with this Agreement.
AUDIT AND RECORD-KEEPING.
During the Term and for five (5) years thereafter, Agency Partner will maintain legible, accurate and complete books and records relating to this Agreement. At Cloudflare’s request, Agency Partner will cooperate and assist Cloudflare with any audit, review, or investigation ("Audit") that relates to (i) the Agreement or Agency Partner’s compliance with applicable laws; and (ii) any amounts payable by or due to Cloudflare. In connection with an Audit, Agency Partner will deliver all records, information, and documents reasonably requested by Cloudflare. Agency Partner will grant Cloudflare and its employees and representatives’ reasonable access to information, records, personnel, and customers. Failure to cooperate with an Audit or provide the information or records requested by Cloudflare is a material breach of this Agreement. Cloudflare will pay the costs of an Audit except where (a) such Audit is to confirm Agency Partner’s remediation of any material non-conformities uncovered by any Audit that was performed in the previous (3) months or (b) such Audit uncovers an underpayment by Agency Partner of more than $100 or Agency Partner’s material breach of this Agreement.
TERM AND TERMINATION.
Term. This Agreement will commence on the date upon which this Agreement is accepted by Agency Partner (the “Effective Date”) and, unless terminated as provided herein, will remain in effect until all Subscriptions have expired or have been terminated (“Term”).
Termination. Cloudflare may terminate this Agreement for convenience, without liability, upon thirty (30) days prior written notice. Either Party may terminate this Agreement immediately, upon written notice: (i) if the other Party breaches any material provision of this Agreement and such breach cannot be cured, or, if such breach can be cured, fails to cure such breach within thirty (30) days after written notice thereof; (ii) if the other Party suffers a Force Majeure Event (as defined below) lasting more than thirty (30) days; or (iii) if the other Party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state or similar statute that is not dismissed within sixty (60) days, or becomes insolvent or subject to direct control by a trustee, receiver, or similar authority.
Effect of Termination. Upon termination or expiration of this Agreement: (i) Agency Partner's rights and licenses granted under this Agreement terminate; (ii) neither Party shall have the right to represent itself as a Agency Partner of the other Party; (iii) each Party shall cease all use of the other Party’s Marks, (iv) each Party will promptly destroy or return all copies of Confidential Information of the other Party, and (v) the due date of all outstanding payments due under the Program Addendum shall automatically be accelerated and become immediately due and payable. Cloudflare shall have no liability to Agency Partner for termination of this Agreement, including without limitation for liability for damages due to loss income or for expenditures, loss of business opportunity, or loss of goodwill. Upon termination of this Agreement, Cloudflare may, in its sole discretion: (a) continue to provide Services to End Customers with outstanding subscriptions for which Agency Partner has paid all fees in advance; (b) require Agency Partner to assign its agreement with the End Customer with respect to the provision of Services to Cloudflare or a Cloudflare-authorized Agency Partner, including all rights to receive payment of fees, and Agency Partner hereby consents to such assignment, and/or (c) cancel any orders or portions thereof which have not been delivered.
Survival. In addition to any Sections that by their terms or given the context shall survive the expiration or termination of the Agreement, the following Sections will survive the expiration or termination of this Agreement: Sections 1.3, 1.4, 1.6, 5.2, 6, 7, 8 through 13.
WARRANTIES
Mutual Representations and Warranties. Each Party represents and warrants the following: (i) it has the right and power to enter into this Agreement and to fulfill its obligations hereunder; and (ii) entering into, and performance of its obligations under, this Agreement does not violate, and is not inconsistent with, any agreements between such Party and any third parties.
DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. CLOUDFLARE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. CLOUDFLARE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
COMPLIANCE
Agency Partner Warranties. Agency Partner represents and warrants that: (a) it will make no representations, warranties, or guarantees concerning Cloudflare or the Services other than what is contained in the Service Terms or marketing materials; (b) at its sole expense, it will obtain and maintain all licenses and governmental approvals which may be necessary to permit its activities under this Agreement; (c) it will comply with all applicable laws and regulations, including, anti-bribery, anti-kickback, and anti-corruption laws (including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business and other similar laws (“Anti-Corruption Laws”)), laws pertaining to economic sanctions (including US sanctions implemented by the Office of Foreign Assets Control); and export control laws (including the Export Administration Regulations implemented by the Bureau of Industry Security); (d) neither it, nor any of its directors, officers or employees performing work with respect to this Agreement (“Relevant Persons”), have been convicted of any offense involving bribery, corruption, fraud or dishonesty, or to the best of its knowledge, have been or are the subject of any investigation, inquiry or enforcement proceeding by any governmental, administrative or regulatory body regarding any offense or alleged offense under Anti-Corruption Laws; (e) neither it, nor any Relevant Persons are government officials or Sanctioned Parties; (f) neither it nor any Relevant Persons have or will pay, offer, or promise to pay, or authorize the payment, directly or indirectly, money or anything of value to an official or employee, or to any political party or candidate for political office, for the purpose of influencing any act or decision of such official or of the government obtain or retain business, or to direct business to any person, (g) to the extent they apply, it will abide by the requirements of all federal and local laws which prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin, and (h) that is not presently debarred, suspended, proposed for debarment, voluntarily excluded, or declared ineligible by any state or federal agency. Cloudflare may, upon written notice to Agency Partner, immediately terminate or suspend performance under this Agreement if Cloudflare reasonably believes Agency Partner has breached this Section 9.1.
Conflict of Interest. Agency Partner agrees that neither it nor its personnel, employees, owners, officers, or directors shall directly or indirectly engage in any activity that may involve a conflict of interest with Cloudflare. Agency Partner agrees to disclose to Cloudflare if Agency Partner or any of its personnel, employees, owners, officers, or directors are currently working for or have worked in the past with Cloudflare in any capacity. Such notice is required prior to signing this Agreement or if discovered after the Effective Date, then promptly upon discovery. Breach of this section constitutes a material breach of the Agreement.
Code of Conduct. Agency Partner shall abide by the Cloudflare Third Party Code of Conduct available at
End Customer Restrictions. Agency Partner shall not provide Services to (i) any person or entity subject to trade control or sanctions restrictions under lists maintained by the United States, the United Nations, the European Union, the United Kingdom, or any other relevant sanctions authority, including the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the United States Department of the Treasury, the United Nations Security Council Sanctions List, the EU consolidated list of persons, groups and entities subject to EU financial sanctions, and Consolidated List of Financial Sanctions Targets in the UK; or (ii) a person or an entity in any country that is subject to any sanction or embargo of the United States, the United Nations, or the European Union, including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria (“Sanctioned Party”). Agency Partner acknowledges that any prospect or End Customer may be subject to further screening at Cloudflare’s sole discretion. Agency Partner shall provide Cloudflare with sufficient information to confirm that neither the prospect/End Customer, nor any of its respective controlling persons, officers, directors, employees or agents are a Sanctioned Party (collectively, the “Background Information”). At a minimum, such Background Information must include the prospect’s or End Customer’s legal name, business address, billing address if different, and the URLs for all of the prospect’s/End Customer’s Internet Properties that may receive the Service. Agency Partner warrants that it will periodically update and confirm the accuracy of its prospects’ and End Customers’ Background Information. Cloudflare may refuse or terminate any End Customer’s subscription if it becomes aware or has reason to believe that such End Customer is a Sanctioned Party.
INDEMNIFICATION
Indemnification Obligations of Cloudflare. Cloudflare will defend, indemnify and hold harmless Agency Partner and its Affiliates, licensors, suppliers, officers, directors, employees and agents from and against any third party claims that are based upon on an allegation that Agency Partner’s provision of the Services as permitted under this Agreement misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States Intellectual Property Right (a “Claim”), and Cloudflare will pay all damages and costs (including reasonable attorney’s fees) finally awarded by a court of competent jurisdiction or paid in settlement for such a Claim. Should any portion of the Services become, or in Cloudflare’s opinion are likely to become, the subject of a Claim, Cloudflare may, at Cloudflare’s option and expense, in addition to its obligation to indemnify Agency Partner pursuant to this Section: (i) procure for Agency Partner the right to continue providing the Services; (ii) replace or modify the Services so that they no longer infringe; or (iii) if options (i) or (ii) are not commercially practicable within Cloudflare’s reasonable estimation, terminate this Agreement upon written notice. Notwithstanding any other provision in this Agreement to the contrary, Cloudflare will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (w) Agency Partner’s provision of the Services other than in accordance with this Agreement; (x) any modification to the Services made by Agency Partner (or by any third party for or on behalf of Agency Partner), if a claim would not have occurred but for such modification; or (y) Agency Partner’s provision of the Services in combination with any hardware, software or other materials not expressly authorized by Cloudflare (each, an “Indemnity Exclusion”). THIS SUBSECTION SETS FORTH CLOUDFLARE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND AGENCY PARTNER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Indemnification Obligations of Agency Partner. Except to the extent that Cloudflare is obliged to indemnify Agency Partner in Section 10.1 above, Agency Partner will defend, indemnify and hold harmless Cloudflare and its Affiliates, licensors, suppliers, officers, directors, employees and agents from and against any third party claims that may arise that are based upon: (i) Agency Partner’s breach or alleged breach of this Agreement; (ii) Agency Partner’s negligent acts or omissions in connection with this Agreement; (iii) any infringement claim caused as a result of an Indemnity Exclusion; (iv) any dispute that arises between Agency Partner and an End Customer regarding the Services (including, without limitation, as a result of any suspension or discontinuation of the Services by Cloudflare pursuant to this Agreement); and (v) any content, activities, or commerce conducted on Managed Internet Properties.
Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit, provided however that failure to provide such prompt notice will not release the indemnifying Party from its indemnity obligations except to the extent the indemnifying Party is materially prejudiced thereby; (ii) the indemnifying Party will have sole control of the defense or settlement of any claim or suit, provided that, the indemnified Party will have the right to participate, at its own expense and with counsel of its choice in the defense of any claim or suit that has been assumed by the indemnifying Party; (iii) the indemnified Party will reasonably cooperate with the indemnifying Party (at the indemnifying Party’s expense) to facilitate the settlement or defense of any claim or suit; and (iv) the indemnifying Party will not settle any claim or suit, without the indemnified Party’s prior written consent which may not be unreasonably withheld.
LIMITATION OF LIABILITY
TYPES OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CLOUDFLARE BE LIABLE TO AGENCY PARTNER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR FOR ANY LOSS OF REVENUE, DATA, OR PROFITS, AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE WARRANTIES AND REMEDIES PROVIDED HEREUNDER. THIS LIMITATION OF LIABILITY WILL APPLY WHETHER OR NOT THE OTHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
AMOUNT OF DAMAGES. CLOUDFLARE’S TOTAL CUMULATIVE LIABILITY TO AGENCY PARTNER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO CLOUDFLARE BY AGENCY PARTNER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS BROUGHT HEREUNDER. FOR CLARITY, ANY FEES PREVIOUSLY PAID OR OWING WILL NOT BE CREDITED AGAINST AGENCY PARTNER’S MAXIMUM LIABILITY UNDER THIS SECTION 11.
EXCEPTIONS TO LIMITATION OF LIABILITY. NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS CLOUDFLARE’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
CONFIDENTIALITY
Confidential Information. For purposes of this Agreement, “Confidential Information” will mean (i) any information which, if disclosed by the disclosing Party (“Discloser”) in tangible form, is conspicuously marked “confidential” at the time of disclosure; (ii) which, if disclosed orally, is clearly designated as confidential at the time of disclosure and is specifically identified in a confirmatory writing sent to the receiving Party (“Recipient”) within thirty (30) days following initial disclosure; or (iii) any information disclosed, or provided under circumstances reasonably indicating such information is confidential, regardless of whether the Discloser has marked it as such. Notwithstanding the foregoing, Confidential Information will not include information that (v) is or becomes generally or publicly known through no fault of the Recipient; (w) is known by the Recipient at the time of disclosure by Discloser; (x) is independently developed by Recipient without access to the Confidential Information; (y) is lawfully obtained by Recipient from a third party who has the right to make such disclosure; or (z) is released for publication by Discloser in writing.
Confidentiality Obligations. Each Party agrees that during Term, and for a period of three (3) years following the termination or expiration of this Agreement (or, in the case of Confidential Information that consists of trade secrets, during the Term and for a perpetual period thereafter for so long as such information remains a trade secret), each Party will not disclose or use the other Party’s Confidential Information, except to the extent necessary for the performance of this Agreement. Each Party will take at least those measures that it takes to protect its own Confidential Information of a similar nature, but in no event less than reasonable care. Each Party will ensure that its employees and independent contractors who have access to Confidential Information of the other Party: (i) have a need-to-know such information for the purposes of performing under this Agreement; and (ii) have signed a non-use and non-disclosure agreement, prior to any disclosure of Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser without liability to the extent required to comply with applicable law or a court order, provided the Discloser is given adequate notice to attempt to preclude or limit such disclosure.
Injunctive Relief. Each Party acknowledges that any breach of its obligations with respect to the Confidential Information of the other Party may cause such other Party irreparable injury for which there may be inadequate remedies at law, and such Party will be entitled to seek equitable relief in addition to all other available remedies.
GENERAL
Force Majeure. Neither Party will be liable for any loss or damage as a result of any failure to perform or any delay due to any cause beyond such Party’s reasonable control (each a, “Force Majeure Event”), provided that the delayed Party uses reasonable efforts under the circumstances, to notify the other Party of the existence of the Force Majeure Event and works to resume performance as soon as possible. A Force Majeure Event shall not limit a party’s obligation to pay moneys owed prior to the Force Majeure Event.
Notices. All notices or reports will be in writing and will be delivered by personal delivery, email, or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon receipt of electronic transmission. Notices will be sent to the address provided in this Agreement.
Government End Customers. Agency Partner is not authorized under this Agreement to sell to any government End Customers, including federal, local, state, local, or tribe entities.
Miscellaneous. The Parties are independent contractors, and neither Party is an agent, partner or employee of the other Party. If any provision of this Agreement is deemed illegal or unenforceable by a court of competent jurisdiction, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. Headings are for convenience only and do not impact the construction of this Agreement and “including” means “including but not limited to.” Unless otherwise stated herein, all remedies are cumulative and not to the exclusion of any other rights and remedies available at law or in equity. This Agreement, and any actions or disputes arising therefrom, shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions. The jurisdiction and venue for any action arising out of or relating to this Agreement shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, either party may seek equitable relief or enforcement of any judgment in any other court of competent jurisdiction. Any provision of this Agreement that explicitly or by its nature contemplates performance or observance subsequent to termination or expiration of this Agreement shall so survive and continue in full force and effect. All content referenced in this Agreement by hyperlink is incorporated into this Agreement in its entirety. This Agreement, together with all documents incorporated by reference, supersedes all prior discussions and writings and constitutes the entire agreement between the Parties with respect to the subject matter hereof. The terms of any purchase order, written terms or conditions, or other document submitted to Cloudflare by Agency Partner which contains terms which are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected by Cloudflare, and will be void and of no effect. No Party may assign this agreement without the written consent of the other Party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties’ successors and permitted assigns. No waiver of this Agreement will be binding upon either Party unless made in writing and signed by a duly authorized representative of each Party and no failure or delay in enforcing any right will be deemed a waiver. Cloudflare reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights Cloudflare will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. Unless otherwise specified, any modifications to this Agreement will take effect on the first day of the month following the notice.
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