Terms & Conditions

These Master Terms And Conditions (“Master Terms”) Apply To All Services Made Available To The Customer By  Organic Design, A Connecticut Limited Liablity Company Having A Principal Place Of Business At 31b Frog Hollow Rd Ellington, Ct 06029. The “Customer” Is An Entity Which Enters Into An Order With Organic Design Pursuant To These Master Terms. Each Order Executed By The Parties Forms A Separate Contract Between Which Incorporates And Is Governed By These Master Terms (Organic Design And Customer Are Sometimes Collectively Referred To As The “Parties”). 

These Master Terms, together with each fully executed Order and Statement of Work, any applicable Services Rider containing terms and conditions specific to any Services form the contract between Organic Design and the Customer (collectively, the “Agreement”). In the event of any conflict between the terms and conditions of these Master Terms and the terms and conditions of any Order, the terms and conditions of the Order shall control with respect to such Order. In the event of any conflict between the terms and conditions of these Master Terms and the terms and conditions of any Services Rider, the terms and conditions of the Services Rider shall control with respect to the relevant Services.

1. Ordering Services. 

1.1 Services Generally.

 Organic Design agrees to provide the Customer the services (collectively, “Services”) described in a mutually agreed ordering document signed by the Parties (each an “Order”). Services may include access to certain software applications and other technology of Organic Design, including hosting, regular support and maintenance any and all regular updates, enhancements, error corrections, bug fixes, and modifications which are made generally available by Organic Design to its customers (collectively, “SaaS Services”) and certain professional services, including deployment of the SaaS Services and other professional services, such as website design, training and consulting services (collectively, “Professional Services”). Specific Services are  also subject to the terms and conditions included in the Order during the duration stated therein. The Customer shall only have the right to receive those Services specified in the relevant Order. Subject to the terms and conditions of this Agreement, Organic Design shall make the relevant Services available to the Customer on the Effective Date of the applicable Order. In the course of providing the Services, Organic Design may utilize its employees, affiliates, subcontracts, and third party service providers (“Representatives”) to provide their services to Organic Design as part of Organic Design’s provision of Services to the Customer. Organic Design’s Representatives shall include third parties who provide back-up, hosting, support and business recovery services. Organic Design remains responsible for the acts of its Representatives under this Agreement.

 2. Usage Rights and Restrictions.

 2.1 Usage Rights– SaaS Services. 

Subject to the terms of this Agreement, Organic Design grants the Customer the right to access and use the SaaS Services described in each Order solely by the Customer’s employees, faculty, administrators, students, parents of students, alumni and/or third-party service providers who are authorized by the Customer to use the SaaS Services on the Customer’s behalf (collectively, “Authorized Users”). With respect to public-facing content that the SaaS Services display on behalf of the Customer, Authorized Users include individuals who access screen displays of the SaaS Services on a remote, web-enabled basis in order to view the content which the Customer has chosen to display to the public. The Customer and its Authorized Users shall access the SaaS Services solely via Organic Design’ hosted portal. The Customer shall have no other access to any Organic Design technology and shall not be entitled to download or otherwise receive a copy of the SaaS Services. Due to the nature of a SaaS delivery model, the SaaS Services to which the Customer is provided access will be the then current version of such SaaS Services which is made available by Organic Design to its customers generally. The Customer shall be liable for the acts and omissions of its Authorized Users relating to this Agreement and use of the SaaS Services. Organic Design reserves to itself all rights not expressly granted pursuant to this Agreement. 

2.2 Restrictions. 

The Customer and its Authorized Users shall not (i) access or use the Services beyond the term and specific scope limitations forth in the relevant Order; (ii) modify, copy, transfer, translate or create any derivative works based on the SaaS Services; (iii) override or attempt to override or circumvent any security feature, control or usage limits with respect to the SaaS Services; (iv) remove or alter any copyright notices, trademarks or other proprietary rights notices contained on or within (or in any materials provided by Organic Design in connection with) the Services; (v) resell or sublicense the Services or use the SaaS Services to provide any services on behalf of any third Organic Design  2 parties; (vi) violate any applicable law, regulation, order, decree or judgment in connection with the use of the Services, including any content and data utilized thereby; (vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the SaaS Services, Organic Design’s systems or any software applications deployed by or accessible via integration with Organic Design; or (viii) attempt to gain access to the SaaS Services or any Organic Design systems in a manner not expressly authorized in the Agreement. The Customer shall take all reasonable precautions to prevent any virus or other malicious code from compromising the SaaS Services and/or Organic Design systems, including implementing other industry-standard security protections for any browsers used to access the SaaS Services. The Customer shall only enable access to and allow use of the Services in accordance with the express terms of the Agreement. Additional usage limitations or restrictions may be imposed on the Customer’s use of the Services in the relevant Order, including limitations on bandwidth and storage. 

2.3 Analytics. 

The Customer acknowledges that Organic Design may track usage of the SaaS Services by the Customer and its Authorized Users (by use of Google Analytics and other similar means) for purposes of providing, enhancing and maintaining its service offerings, collecting and analyzing cookies and other metadata, for analytical, statistical or benchmarking purposes and for creating analytics related to the use of the SaaS Services by Organic Design customers (“Analytics Data”). Analytics Data is created and maintained on an anonymized basis and does not identify individual data subjects. All right, title and ownership of Analytics Data (including all derivative works thereof) is and shall remain solely and exclusively vested in Organic Design. 

3. Service Levels.

 3.1 Organic Design will provide the SaaS Services in accordance with the Service Level Agreement (“SLA”) available at https://www.Organic Design.com/servicelevels, as may be amended from time to time in a manner that does not materially degrade the service levels set forth therein. 

4. Professional Services. 

4.1 Statement(s) of Work. 

The Parties may also enter into a Statement of Work (each, a “SOW”) to describe the scope of certain Professional Services and specific terms and dependencies relating to those Professional Services. In order to be effective, a SOW must be signed by both Parties and reference the applicable Order. Any modifications or changes to the Services following execution of a SOW must be evidenced by a mutually acceptable amendment signed by both Parties.

 4.2 Limitations/ Cooperation. 

Any timetable set forth in a SOW, Order or other project document is a good faith estimate which is dependent on, among other factors, the Customer’s provision of appropriate information, cooperation, assistance, and tasks, including those items which may be identified as the responsibility of the Customer in the SOW. Subject to Section 7.02 of these Master Terms, the Customer shall provide Organic Design access to the Customer’s logos and trademarks and other content as may be necessary Organic Design to perform the Professional Services described in an Order. 

4.3 Professional Services Representations and Warranties. 

Organic Design will provide all Professional Services in a professional and workmanlike manner and in accordance with any and all descriptions or requirements set forth in an applicable SOW. If deliverables are provided as part of the Professional Services and those deliverables do not conform in all material respects to any applicable specifications and other requirements described in the applicable Order or SOW, the Customer shall give Organic Design written notification of the deficiency or non-conformance within thirty (30) days after delivery of such Services. Organic Design then shall, within thirty (30) days of receipt of such written notification, use commercially reasonable efforts to correct the deficiency. The Customer shall provide such support and assistance as reasonably requested by Organic Design to discover the cause or a cure for the reported deficiency or non-conformance. 

5. Maintenance and Support.

 5.1 Scope. 

Organic Design shall provide maintenance and support of the SaaS Services, including provision of and all regular updates, enhancements, error corrections, bug fixes and modifications to the SaaS Services in accordance with Organic Design’s then-current standard support policies and practices as and when made available to customers generally. Organic Design supports the Customer’s browser access to the SaaS Services utilizing the then-current version and one prior version of Microsoft Edge, Internet Explorer, Safari, Chrome or Firefox. Certain Support Services are accessible through the “Help” section located in the Customer’s interface to the SaaS Services. Organic Design reserves the right to discontinue any Service during the Term for any reason, but in such event Organic Design will notify Customer and, as Customer’s sole and exclusive remedy, Organic Design will provide a pro-rata refund for any unused portion of the discontinued Services. 

5.2 Enhanced Support.

 Certain support Services (such as expedited or "priority" support) may be purchased by the Customer under an Order, and, in such event, the terms and conditions of such Support Services, and associated fees, shall be as described in the applicable Order. 

6. Third Party Technology.

 6.1 Third Party Technology. 

Organic Design may utilize certain software or other technology of third parties (collectively, “Third Party Technology”) in connection with its provision of the SaaS Services. The SaaS Services may be used to enable the Customer to interact with and/or utilize certain Third Party Technology, such as payment processing, online chat services, site translation services, accessibility overlay solutions, font and typography services, and any web service, website, social media platform or online library that enables functionality within a webpage displayed by the SaaS Services. Organic Design shall be responsible for enabling interoperability between the SaaS Services and the Third Party Technology described in the relevant Order. Except for the foregoing, the Customer is solely responsible and liable for the Customer’s access to or use of any Third Party Technology. 

7. Ownership.

 7.1 Customer Materials. 

As between the Customer and Organic Design, Customer Materials are the sole and exclusive property of Customer. “Customer Materials” means, collectively, all data and materials (including text and images) that the Customer and its Authorized Users input, post, submit, or otherwise provide to Organic Design while utilizing the Services and in connection with Organic Design’s provision of Services under this Agreement; and Customer’s logos and trademarks. The Customer shall be solely responsible and liable for the content, accuracy or completeness of all Customer Materials (including monitoring the content of Customer Materials posted on the SaaS Services), and for any infringement of any third party intellectual property rights resulting from by any Customer Materials. 

7.2 Use of Customer Materials.

 During the Term of this Agreement, Customer grants to Organic Design and its Representatives a non-exclusive, royalty-free license to access, modify, reproduce, display, combine, copy, store, transmit, distribute, and otherwise use the Customer Materials for purposes of performing Organic Design’s obligations hereunder. Subject to the terms of the Agreement and to the extent permitted by applicable law, Customer authorizes Organic Design and its Representatives to access and process Customer Materials in countries other than the jurisdiction from which the Customer Materials were originally collected. Organic Design shall not use Customer Materials except as authorized by the Customer under this Agreement (including, the applicable DPA) and to the extent required, or permitted, by applicable laws or regulations. 

7.3 Services. 

As between the Customer and Organic Design, Organic Design owns all right, title, and interest in and to: (a) the SaaS Services, including the underlying software applications and technology and all application program interfaces (“API’s”) provided or made available by Organic Design in connection therewith; (b) all documentation, materials, work product and deliverables resulting from or related to the Services; and (c) all enhancements, modifications, updates, upgrades and derivative works thereof and all Intellectual Property Rights in any of the foregoing. Any enhancements, modifications, derivative works or any other intellectual property created directly or indirectly using or referring to the SaaS Services or components thereof, whether created solely by the Customer, a third party on behalf of the Customer, jointly by the Customer and Organic Design or a third party on either party’s behalf, belong exclusively to Organic Design, and the Customer hereby irrevocably assigns all rights therein, including all Intellectual Property Rights to Organic Design. For purposes of these Master Terms, “Intellectual Property Rights” means collectively all intellectual or industrial property rights recognized now or in the future under the laws of any jurisdiction throughout the world, including trademarks and trade mark applications, trade names, service marks, patents and patent applications, copyrights, and trade secrets in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing and derivative works and improvements (as such terms are defined and applied under Title 17 and Title 35 U.S.C., respectively). 

7.4 Content Restrictions. 

Customer agrees not to use any Service to store, display, or transmit content that is deceptive, libelous, defamatory, obscene, racist, hateful, infringing or illegal, and to the extent Authorized Users exercise the rights granted to you under this Agreement, Customer represents and agrees that it will ensure that its Authorized Users will also comply with the obligations applicable to such exercise set forth in this Agreement. Organic Design takes no responsibility and assumes no liability for any Customer Materials that it, or any Authorized User, or third party out of our control posts, submits, displays, or otherwise makes available via any Service, and Customer agrees Organic Design is acting only as a passive conduit for the online distribution and publications of such Customer Materials. 

7.5 Removal of Content. 

If Organic Design determines in good faith that any Customer Materials could (a) pose a material security risk, (b) be deceptive or perceived as libelous, defamatory, obscene, racist, hateful, or otherwise objectionable, or (c) give rise to potential liability to Organic Design or a violation of applicable law or the terms or restrictions of the Agreement, then we may remove the offending Customer Materials, suspend 4 Customer’s and/or your Authorized Users’ use of the Services, and/or pursue other remedies and corrective actions. 

7.6 Other Rights. 

Customer hereby grants Organic Design a limited right and license to use Customer’s name, logo and/or other marks for the sole purpose of listing Customer as a user of the applicable Services in promotional materials unless and until Customer provides a written request to discontinue such use. 

7.7 Feedback. 

In the event that the Customer or any of its Authorized Users submit any ideas, suggestions, proposed enhancements, or other feedback relating to the SaaS Services (collectively, “Feedback”), Organic Design shall own all such Feedback without compensation to the Customer or its Authorized Users and the Customer hereby irrevocably assigns all rights, including any Intellectual Property Rights, in such Feedback to Organic Design. 

8. Protection of Personal Information. 

8.1 Provision of Personal Information. 

In connection with use of the Services set forth in an Order, the Customer and its Authorized Users may from time to time provide Organic Design with certain personally identifiable information of the Customer’s students, prospective students, parents of students, faculty, administrators, employees and/or Authorized Users that is protected by various laws and regulations (“Personal Information”). 

8.2 Data Protection and Other Compliance Obligations. 

Both parties shall comply with their respective obligations under applicable data privacy laws with respect to Personal Information. Organic Design will maintain reasonable and appropriate security measures designed to protect Personal Information from unauthorized access, destruction, use, modification, and disclosure. 

8.3 Customer Data Privacy Obligations. 

The Customer shall maintain reasonable and appropriate security measures to protect the confidentiality and integrity of its account IDs, passwords, and interaction with the SaaS Services. The Customer shall be responsible for all account activities regardless of whether the activities are authorized by the Customer or undertaken by the Customer, its employees and other Representatives or Authorized Users and Organic Design is not responsible for unauthorized access to your account. The Customer shall also comply with all applicable laws and regulatory requirements governing Personal Information utilized and transferred in connection with the SaaS Services. 

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10. Consent to Use/Transfer 

10.1 Consents. 

The Customer represents and warrants that at all times during the Term, it has obtained all consents necessary for Organic Design to access and use the Customer Materials and Student Data for purposes of providing the Services, including those consents related to the collection, use, maintenance and transfer of Personal) 5 Information (including Student Data) in compliance with applicable law and regulatory requirements (including the Children’s Online Privacy Protection Act, as amended). Organic Design may rely on this Agreement as the Customer’s representation that all necessary consents have been obtained and Organic Design shall not be required to independently verify such fact or compliance by the Customer with applicable law with respect thereto. 

10.2 Authorized Use.

 The Customer further represents and warrants that the use of Personal Information and other Customer Materials by Organic Design, in accordance with the terms of the Agreement, does not and will not violate any applicable law or regulatory requirements, or result in the breach of any covenant or obligation that the Customer has to any person or entity. The Customer acknowledges that Organic Design has no responsibility to review or monitor any Customer Materials, including reviewing or determining the legality, accuracy or completeness of Customer Materials. Organic Design, however, reserves the right to take any action with respect to the Services that Organic Design deems necessary or appropriate in its sole discretion if Organic Design reasonably believes the Customer’s use of the Services could violate applicable law or regulatory requirements, create liability for Organic Design, its affiliates and/or its suppliers, or could otherwise compromise or disrupt services provided to other customers. 

11. Customer Responsibilities. 

11.1 Hardware and Customer Procedures. 

In addition to its other responsibilities as set forth in this Agreement, the Customer is solely responsible for and assumes all liability relating to (i) decisions about the Customer’s computer and communications systems needed to access the SaaS Services; (ii) all purchases of any necessary hardware, software, services or licenses required by the Customer to access and use the SaaS Services as contemplated in this Agreement; (iii) the Customer’s procedures and criteria, including any claim by an applicant, student, parent or employee arising from the Customer’s procedures or criteria and any violation of any applicable statutory or regulatory requirements resulting from implementation of the Customer’s procedures and criteria; and (iv) provision and maintenance of all domains and URLs used by the Customer and its Authorized Users to access the Services. 

11.2 Compliance with Law. 

The Customer and its Authorized Users shall comply with all applicable law and regulatory requirements in their respective execution, delivery and performance of this Agreement and access to and use of the Services. 

11.3 Terms of Use. 

Access and use of the Services is contingent upon compliance with the terms and conditions of this Agreement. The Customer warrants and covenants that neither the Customer or its Authorized Users will: (i) use the Services, in whole or in part, to store, initiate, or transmit material (including Customer Materials) that is infringing, libelous, defamatory, abusive, harmful to minors, designed to cause annoyance, inconvenience or distress to any person; comprises unsolicited marketing in violation of third-party privacy or property rights, or otherwise violate applicable law: (ii) interfere with, unreasonably burden, or disrupt the integrity or performance of the Services or third-party data or content contained therein; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; or (iv) provide the Services to third parties who are not Authorized Users, including, by resale, license, loan or lease. The Customer will use best efforts to prevent and/or block any prohibited use and will cooperate with Organic Design to prevent or cease such use from continuing. The Customer will notify Organic Design in writing, within three (3) business days of discovery of facts indicating that the Services are being used in violation of the Agreement or applicable law, describing such violation(s), and the basis for such knowledge, and shall fully cooperate with Organic Design to remedy such violation. The Customer shall be solely responsible and liable for such violative use.

 12. Term of the Agreement/Orders. 

12.1 Term.

 This Agreement shall become effective on the effective date of the first Order entered into by the Customer and Organic Design and shall continue through the termination date of all Orders hereunder (the “Initial Term”), unless terminated earlier in accordance with the provisions of this Agreement. The term of any Order shall be stated in the Order, provided however that unless otherwise provided in any Order, the term of each Order shall automatically renew for successive terms of equal duration to the initial term stated therein (each, a “Renewal Term”), unless either Party provides written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then-current term. The Initial Term and all Renewal Terms are collectively referred to as the “Term”. 

13. Termination

13.1 Uncured Breach. 

In the event either party defaults in any obligation in this Agreement or any Order, the non-defaulting Party shall give written notice of such default. If the Party in default has not cured the default within thirty (30) days of receipt of the notice, the non-defaulting Party may terminate this Agreement by delivering written notice thereof to the defaulting Party. 

13.2 Insolvency.

 Either Party may terminate this Agreement, effective immediately upon written notice, in the event that the other party: (i) makes a general assignment for the benefit of creditors; (ii) institutes proceedings seeking relief or reorganization under any laws relating to bankruptcy or insolvency or (iii) has a court of competent jurisdiction appoint a receiver, liquidator or trustee over all or substantially all of such party’s property or provides for the liquidation of such Party’s property or business affairs. 

13.3 Inactivity.

 Either party may terminate this Agreement upon written notice at any time when there are no Orders then in effect. In addition, this Agreement shall automatically expire if there are no Orders or SOWs Work in effect for a continuous period of six (6) months. 

13.4 Effects of Termination.

 Termination of this Agreement or any Order shall terminate all Services provided by Organic Design thereunder without the requirement of additional notice by Organic Design, and the Customer and its Authorized Users shall cease all use of the applicable Services on or before the effective date of termination or expiration. The due dates of all payments owed by the Customer to Organic Design under this Agreement shall become due on the effective date of termination or expiration. 

14. Subcontractors.

14.1 Use of Third Party Contractors.

 Subject to the term of this Agreement, including the relevant DPA and applicable law, Organic Design may utilize third party subcontractors and/or subprocessors in its sole discretion to perform, or support performance of, any Services under this Agreement. In such event, Organic Design shall not be relieved from its obligations under this Agreement. The Customer hereby provides its general consent to Organic Design to such subprocessing. A current list of subprocessor utilized by Organic Design in provision of Services can be found at https://www.Organic Design.com/subprocessors.\

15. Fees and Expenses 

15.1 Fees. 

All fees and expenses payable by the Customer shall be payable in the amounts and on such payment dates as described in the applicable Order. The Customer may ACH or wire payments or pay via check. If the Customer elects to pay via check, the check must be drawn on a U.S. bank. Fees stated in any Order are fixed for the current term of the Order for the scope of Services described in such Order. Thereafter, Organic Design may increase fees for any Renewal Term effective as of the commencement of such renewal term by providing at least thirty (30) days’ advance written notice to the Customer of the increase. Any requested changes to the scope of Services requested by the Customer shall be subject to additional fees, which shall be reflected in an amendment to the existing Order or a new Order executed by the Parties. All amounts payable by the Customer under this Agreement will be paid to Organic Design without setoff or counterclaim, and without any deduction or withholding. All fees are non-refundable. 

15.2 Expenses. 

In addition to obligation to pay fees, the Customer shall reimburse Organic Design for all travel and other out-of-pocket expenses reasonably incurred by Organic Design in rendering Services to the Customer under any SOW. Except as described in a SOW, all such expenses shall be payable by the Customer upon execution of the relevant SOW. 

15.3 Payment Terms. 

All Services fees are payable annually in advance. Payment for the invoice covering the first year of any Order is due and payable upon execution of the relevant Order. Thereafter, Organic Design will invoice the Customer for each subsequent annual period on each annual anniversary of the effective date of the relevant Order. All invoices under any Order shall be due and payable within thirty (30) days of invoice date. After thirty (30) days from the invoice date, Organic Design may charge interest at the rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is less, on all overdue, unpaid amounts until payment is received by Organic Design. All fees incurred by Organic Design for collections (including attorneys’ fees and costs) must be paid or reimbursed by the Customer. All invoices shall be sent to Customer at the billing address set forth in the Order. 

15.4  Suspension for Non-Payment.

 In the event the Customer fails to pay any amounts owing under any Order for sixty (60) days from date of invoice, without limiting its other rights and remedies, Organic Design may suspend Services to the Customer until such amounts are paid in full. Organic Design will provide the Customer prior notice that the Customer’s account is overdue before suspending Services. 

15.5 Taxes. 

The Customer shall be responsible for the payment of, or reimbursement of Organic Design for, any applicable present or future services, sales, use, excise, goods, property, value-added or other taxes or duties levied against or upon the provision of SaaS Services (excluding taxes based upon Organic Design’s net income). Upon request, the Customer shall furnish to Organic Design evidence of payment of any taxes payable by the Customer. If the Customer is exempt from the payment of any such taxes, the Customer will provide Organic Design with a valid tax exemption certificate authorized by the appropriate taxing authority. 

16. Confidentiality 

16.1 Confidential Information.

 In the course of the performance of this Agreement, the Parties may receive or have access to information that is confidential to one or the other Party and a Party’s Authorized Users (collectively, “Confidential Information”). 

Confidential Information shall mean non-public materials and information, in whatever form, written, oral or otherwise, that include, but shall not be limited to

 (i) the SaaS Services, including any modules, functionality or content licensed by Organic Design from third parties; (ii) the distinctive methods or procedures which Organic Design uses in the design, development, licensing, support, or maintenance of the SaaS Services, (iii) each Party’s business processes and strategies, (v) all portions of the Customer Materials which are treated as confidential by the Customer; (vi) all Personal Information; and (v) all information clearly identified by either Party as confidential, provided however that a party’s Confidential Information shall not include information that: (a) is or becomes generally available to the public through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party or from a third party whom the receiving Party knows or should know is under an obligation of confidentiality with the owner of the Confidential Information; (c) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (d) is independently developed by the other Party. 

16.2 Restrictions on Use and Disclosure. 

Each Party agrees to hold the other Party’s Confidential Information in confidence during the Term of this Agreement and following termination for any reason. Except for disclosure to Organic Design’s subcontractors and third-party service providers who are bound by confidentiality obligations with respect to such Confidential Information and as otherwise provided in the Agreement, each Party agrees not to make the other Party’s Confidential Information available in any form to any third party or to use the other Party’s Confidential Information for any purpose not intended under this Agreement. Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by any person or entity in violation of the terms of this Agreement. Following receipt of a written request and promptly following termination of this Agreement, the other Party shall return to the requesting Party, in whole or in part, the Confidential Information that has been disclosed in tangible form. Each Party may retain a copy of Confidential Information solely for archival purposes.

 17. Representations, Warranties & Disclaimers 

17.1 Services Warranties. 

Organic Design warrants to the Customer that during the Term of the Agreement: (i) all Professional Services will be performed in a professional manner, with the requisite level of qualifications, care and skill, exercised consistent with standard industry practices; and (ii) the features and functions of the SaaS Services will comply in all material respects with the description(s) set forth in the applicable standard user guides and administrative guides when used and/or accessed in accordance with the terms and conditions of this Agreement and the applicable Order. The Customer must provide written notice to Organic Design of any alleged defects and the Customer’s sole remedy will be for Organic Design to promptly provide modifications or fixes with respect to the applicable non-conformity. Unless the Customer provides written notice to Organic Design within ten (10) business days following completion of any Professional Services, any claims of breach of warranty with respect to such Professional Services and resulting work product shall be deemed waived. 

17.2 Exclusions. 

The foregoing are excluded from the foregoing services warranties and Organic Design shall not be liable for: (i) the Customer’s or its Authorized Users’ use and/or access the SaaS Services in a manner which is not in conformance with the terms and conditions of this Agreement and relevant Order; (ii) the Customer’s or its Authorized Users’ use the SaaS Services with third party data, software or hardware which is incompatible with the SaaS Services; (iii) errors in the SaaS Services resulting from the Customer’s or its Representatives’ or Authorized Users’ configuration or manipulation of the SaaS Services, in each case not specifically recommended in writing by Organic Design; or (iv) reduced performance or non-availability of the SaaS Services resulting from failure of network connections. 

17.3 Debarment. 

Organic Design represents and warrants that neither it, nor to its knowledge, any of its respective employees or other Representatives engaged in the provision of Services under this Agreement have been excluded, debarred, suspended or otherwise deemed ineligible to participate in Federal, state or other U.S. governmental programs, nor is it, or to its knowledge its respective employees or other Representatives, included on the list of sanctioned parties maintained by the U.S. government, including, without limitation, the List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the Office of Inspector General, the General Services Administration, or any other state or federal governmental agency. 

17.4 Organic Design Validity/ Non-contravention Warranties. 

Organic Design represents, warrants and covenants that: (i) this Agreement constitutes the valid and binding agreement of Organic Design, duly authorized by all necessary action on the part of Organic Design; and (ii) the execution, performance and delivery of this Agreement by Organic Design are within Organic Design’s corporate powers and do not and will not violate (a) the articles of incorporation or bylaws of Organic Design, (b) any law, rule, regulation, judgment, order or decree applicable to Organic Design’s performance of its obligations hereunder or contravene or cause a default under any license, franchise, permit or other similar authorization held by Organic Design, or any agreement to which Organic Design is a party, or (c) require the consent or other action of any person or entity which has not been obtained prior to execution of this Agreement.

 17.5 Customer Validity/ Non-contravention Warranties. 

Customer represents, warrants and covenants that: (i) this Agreement constitutes the valid and binding agreement of the Customer, duly authorized by all necessary action on the part of the Customer and its governing body; (ii) the Customer has full authority to execute and perform its obligations as contemplated by this Agreement; and (iii) the execution, performance and delivery of this Agreement by the Customer are within the Customer’s organizational powers, have been duly authorized by all necessary action on the part of the Customer, and do not and will not violate (a) the applicable organizational documents of the Customer, (b) any applicable law, regulatory requirement, judgment, order or decree or cause a default under any license, franchise, permit or other similar authorization held by the Customer, or any agreement to which the Customer is a party, or (c) require the approval or other action of any person or entity (including in respect of, or filing with, any governmental body, agency or official) which has not been obtained prior to execution of this Agreement. The Customer has provided Organic Design evidence of all necessary approvals prior to execution. 

17.6 Disclaimers. 

It Is The Customer’s Sole Responsibility To Determine The Suitability Of The Services For The Customer’s Use. Except As Expressly Stated In This Agreement, And To The Maximum Extent Permitted Under Applicable Law, Organic Design And Its Licensors Make No, And Hereby Disclaim Any, Representation, Warranty Or Guaranty, Whether Express, Implied, Statutory Or Otherwise, With Respect To The Services Provided Under This Agreement, Including Without Limitation, Any Implied Warranty: (1) Of Merchantability; (2) Of Fitness For A Particular Purpose; (3) Arising From Course Of Performance, Course Of Dealing, Or Usage Of Trade; Or (4) Of Non-Infringement Of Third Party Rights. Except As Set Forth In This Section, The Services Are Provided “As Is”, Without Any Further Warranties Of Any Kind. Organic Design And Its Licensors Make No Warranty That Operation Of The Saas Services Will Be Uninterrupted Or Error-Free Or That All Defects Will Be Corrected. Organic Design And Its Licensors Make No, And Hereby Disclaim Any, Representation, Warranty Or Guaranty, Whether Express, Implied, Statutory Or Otherwise, Regarding Any Third Party Technology. 17.7 Liability Limits. Except To The Extent Expressly Prohibited By Law, Except For Amounts Owed By Customer Under This Agreement, For All Claims By A Party, Whether Such Claims Are Made In Contract, Tort, Or Otherwise, A Party’s Potential Recovery Shall Be Limited To The Actual, Direct Damages Suffered By Such Party Up To The Actual Amount Paid Or Payable By Customer To Organic Design Under The Order Under Which The Claim Arose During The Twelve (12) Months Prior To The Initial Assertion Of Claim(S) For The Specific Service(S) Giving Rise To Such Claim(S). 17.8 Waiver Of Indirect Damages. Except To The Extent Expressly Prohibited By Law, In No Event Shall A Party (In The Case Of Finalite Including Its Suppliers, Licensors, Service Providers And/Or Subcontractors) Be Liable For Any Indirect, Incidental, Punitive, Exemplary, Special Or Consequential Damages (Including, But Not Limited To, Loss Of Profit Or Costs Of Substitute Services) Suffered By Customer, However Caused, Regardless Of The Theory Of Liability, Whether In Contract, Tort, Product Liability Or Otherwise, Even If Organic Design Has Been Previously Advised Of The Possibility, Or Has Constructive Knowledge, Of Such Damages, And Notwithstanding Any Failure Of Essential Purpose. Except As Expressly Set Forth In This Agreement, This Agreement Shall Not Convey Upon Any Third Party Any Rights Hereunder, And No Third Party Shall Be Deemed A Third Party Beneficiary. 

17.9 Customer Procedures and Criteria.

 In The Event The Services Described In An Order Include Implementation Of Procedures Or Criterial Specified By The Customer (Such As The Customer’s Admission Criteria And Enrollment Procedures), Organic Design Expressly Disclaims All Liability Associated With The Content, And Results Obtained By Use, Of Such Procedures And Criteria. The Customer Is Solely Responsible For The Scope If Such Procedures And Criteria And Reviewing The Services As Configured By Organic Design To Ensure Compliance With The Customer’s Procedures And/Or Criteria. Organic Design Assumes No Responsibility Or Liability With Respect To Whether The Customer’s Procedures Or Criteria Comply With Applicable Law Or Regulatory Requirements. To The Extent That Customer’s Procedures Or Criteria Violate Any Applicable Laws Or Regulatory Requirements, Organic Design Reserves The Right To Refuse To Implement Such Procedures Or Criteria Without Liability Hereunder. 18. Modifications/ Amendments. This Agreement (Including Any Order And/Or Sow) Can Only Be Modified Or Amended By A Written Agreement Signed By Persons Authorized To Sign Agreements On Behalf Of Each Of The Parties. 

19. Waiver. 

No failure to exercise and no delay in exercising on the part of either Party, or partial exercise, shall operate as a waiver of any right under this Agreement. A waiver on one occasion shall not operate as a waiver on other occasions. 

20. Severability.

 If any term or provision of this Agreement or application of the terms of this Agreement to the Parties shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, then such invalidity will not affect the remainder of this Agreement and each other term and provision shall be valid and enforceable to the fullest extent permitted by law.

 21. Relationship of Parties. 

The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, association, or other form of agency relationship between the Parties. A Party and its respective personnel shall not be eligible to participate in any employee welfare or other benefit plans, however characterized, which may be maintained by the other Party. Each Party agrees to assume all responsibility and liability for any and all federal and state employers’ liability, workers’ compensation, social security and unemployment insurance requirements with respect to its respective personnel. Each Party agrees to pay and report (or require to be paid and reported) all federal, state and local income, employment and payroll withholding taxes and other governmental taxes or charges for its respective personnel as may be applicable.

22. Assignment. 

This Agreement may not be transferred or assigned directly or indirectly by either Party, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Organic Design may freely assign this Agreement to an affiliate and/or in connection with a change of control transaction or sale of substantially all of its assets as a going concern. 

23. Force Majeure. 

Either Party will be excused from delays in performing or from failing to perform its obligations under this Agreement (except for payment obligations which may be delayed but shall not be so excused) to the extent the delays or failures result from causes beyond the reasonable control of the Party. Without limiting the generality of the foregoing, such causes include acts of God, the public enemy, fires, floods, storms, earthquakes, riots, terrorism, strikes, blackouts, wars or war operations, restraints of government, including public states of emergency, utility or communications failures, denial of service, hacking and other malicious attacks and activities,, software viruses, telecommunications slowdowns or failure, erroneous data transmission, and causes which could not with reasonable diligence be controlled or prevented by the Party. However, to be excused from delay or failure to perform, the Party must promptly provide written notice to the other Party and act diligently to remedy the cause of the delay or failure. 

24. Entire Agreement.

 This Agreement, including any and all Orders, SOWs, Exhibits, Schedules, Attachments and material incorporated by reference, contains the entire agreement of the Parties relating to the rights granted and obligations assumed in this Agreement. This Agreement represents the complete and final agreement of the Parties and supersedes and replaces all prior or contemporaneous oral or written agreements, understandings or commitments between the Parties, including any purchase order. For clarity, while the Customer may utilize a purchase order for its internal administrative purposes, any terms or conditions in any such purchase order shall be deemed null and void and the terms and conditions of this Agreement shall solely govern and control. 

25. Indemnification. 

25.1 Organic Design Indemnity. 

Organic Design will indemnify and defend the Customer against any third-party claim and cause of action and any resulting loss, damage or expense (including reasonable attorney’s fees) awarded against the Customer to the extent caused by (i) any fraud or willful misconduct by Organic Design or its Representatives; or (ii) the infringement by the SaaS Services, as provided by Organic Design and used in accordance with the terms of this Agreement and the relevant Order, of any Intellectual Property Rights of such third party. If any SaaS Services are held or believed to infringe any third party’s Intellectual Property Rights, Organic Design may, in its sole discretion, (i) modify the relevant SaaS Services to be noninfringing, (ii) obtain for the Customer the right to continue using the relevant SaaS Services or (iii) if neither (i) nor (ii) are commercially practicable, terminate the relevant Order as to the alleged infringing SaaS Services and return to the Customer any unearned fees for use of such SaaS Services prepaid by the Customer to Organic Design.

 25.2 Exclusions. 

The foregoing indemnity will not apply and Organic Design will not be liable for any damages assessed in any cause of action to the extent such cause of action arises or damages result from (i) the Customer’s or its Authorized Users’ use of the relevant SaaS Services other than as set forth in this Agreement and the relevant Order; or (ii) the combination, operation or use of the relevant SaaS Services with software, hardware, technology or other materials not approved or supplied by Organic Design if infringement (including, without limitation, contributory infringement) would have been avoided by use of the relevant SaaS Services without such software, hardware, technology, or other materials. 

25.3 Customer Indemnity. 

Except to the extent expressly prohibited by law with respect to immunity of government entities applicable to the Customer, the Customer shall indemnify and hold Organic Design, its licensor's and each such party's affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) awarded against Organic Design to the extent caused by: (i) any fraud willful misconduct of the Customer or its Representatives or Authorized Users; (ii) the infringement by the Customer Materials, and/or any Third Party Technology provided to Organic Design or input into the SaaS Services by the Customer or its Authorized Users, of the Intellectual Property Rights of a third party; and (iii) the nature, substance or content of the Customer Materials (such as a defamation claim, an invasion of privacy claim, a claim arising from lack of consent to use the Customer Materials). 

25.4 Indemnity Procedure.

 The indemnities set forth in this Agreement are conditioned on the following: (i) the party claiming indemnification (the “Indemnitee”) shall promptly notify the indemnifying party (the “Indemnitor”) of any matters in respect of which it seeks to be indemnified, and shall give the Indemnitor full cooperation and opportunity to control the response thereto and the defense thereof, including without limitation any settlement thereof; (ii) the Indemnitor shall have no obligation for any claim under this Agreement if the Indemnitee makes any admission regarding such claim involving the Indemnitor without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld; and (iii) the Indemnitee’s failure to promptly give notice to the Indemnitor shall affect the Indemnitor’s obligation to indemnify the Indemnitee only to the extent the Indemnitor’s rights are materially prejudiced by such failure. The Indemnitee may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. Each party will take reasonable steps to mitigate any potential damages. If both the Indemnitor and Indemnitee are at fault, then the Indemnitor shall indemnify the Indemnitee only for the percentage of responsibility for the damage or injuries attributable to the Indemnitor.

 25.5 Exclusive Remedy. 

THIS SECTION 25 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND THE EXCLUSIVE REMEDY OF EACH PARTY, WITH RESPECT TO CLAIMS BY ANY THIRD PARTY.

 26. Venue and Applicable Law. 

This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of Delaware, USA, excluding conflict of law principles. The original of this Agreement has been written in English and English is the governing language of this Agreement. The Customer waives any right it may have under the law of its territory to have this Agreement interpreted by or written in the language of the territory. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. Any disputes arising out of this Agreement or the breach thereof shall be resolved in the state or Federal courts located in Hartford County, Connecticut USA. 

27. Export Control.
Customer shall not export or allow the export or re-export the Services, any components thereof or any Confidential Information of Organic Design without our express, prior, written consent and except in compliance with all export control laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, and, if applicable, relevant foreign laws and regulations. 

28. General Definitions. 

Reference in this Agreement or any Order or other document incorporated by reference into the Agreement to the following words shall have the meaning set forth in this Section 31: (i) “ensure” and its derivatives means to use commercially reasonable efforts to pursue the stated aim and does not imply or constitute any guaranty of results or outcomes or any express or implied covenant, warranty or representation; (ii) “best efforts”, “commercially reasonable efforts” and “reasonable efforts” mean acting with diligence and good faith in the performance of the applicable obligation; and (iii) “immediately” means promptly and without undue delay.