Leapsome GmbH, Brunnenstraße 153, 10115 Berlin, Germany
Last updated: November 2024
Leapsome GmbH, Brunnenstraße 153, 10115 Berlin, Germany (“Leapsome”, “We” or “Us”) agrees to provide a cloud-based software platform for people enablement, as described in the Order Form (as defined below) (“Software”), to You, as an organization (“You” or "Customer”, together with Us, the “Parties”), subject to the terms of these Terms of Service ("ToS"). These ToS govern Your use of the Software through online interfaces such as web browsers, apps or application programming interfaces, as defined by Us and updated from time to time (“Interface”).
1. Acceptance of these ToS, Authority and scope of services
1.1 Acceptance of ToS. You may enter into a contractual relationship with Leapsome (the “Agreement") by (i) creating a time-limited account free of charge for trial purposes (“Trial Account”), (ii) by signing an individual offer issued by Us defining the scope of the Software license granted under a Fee-based contract (“Order Form”) and referencing these ToS or (iii) any other form of accepting the ToS in the course of accessing the Software
1.2 AUTHORITY. LEAPSOME OFFERS THE SOFTWARE ON A BUSINESS-TO-BUSINESS BASIS ONLY. YOU REPRESENT, BY SIGNING THE ORDER FORM OR ACCEPTING THE AGREEMENT ELECTRONICALLY THAT (A) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND FULLY PERFORM ALL OBLIGATIONS UNDER THE TOS AND ORDER FORM (COLLECTIVELY, THE “AGREEMENT”), AND (B) YOU AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT. WE PROVIDE THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT AND ON THE CONDITION THAT YOU COMPLY WITH THEM.
1.3 Scope. The subject matter of these ToS is the provision of the Software to the extent selected by You for the Term (as defined in section 2 of the ToS), together with the granting of rights required for this use in accordance with section 4 of the ToS. Additional services within the Software, such as specific learning content, data or similar or auxiliary services can also be agreed upon separately between the Parties. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, NO ADDITIONAL LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THE AGREEMENT.
1.4 Start date. You may use the Software from the date specified in the applicable Order Form, (ii) You create or access a Trial Account, or (iii) another date as agreed between the Parties (together each the “Effective Date”).
1.5 Customer support. We will provide customer support in setting up the Software if and to the extent stated in Your Order Form. Further configuration of or training on the Software as well as any additional services are not subject to these ToS, but may be agreed separately between the Parties.
1.6 Fair use. Parts of the Software with broad usage scope may be subject to fair use, as reasonably determined and communicated by Us. These limitations are established to ensure the Software is used in a fair, reasonable, and non-excessive manner consistent with the typical usage of a Software like Ours (“Fair Use Principle”). For example, we determine that exceeding twelve (12) e-signatures per user per year, averaged across Your account, can be considered a violation of fair use. We also reserve the right to monitor and enforce these limitations accordingly.
2. Term and Termination
2.1 Term. For fee-based accounts the contractual term between You and Us starts on the Effective Date and continues as indicated in the Order Form or as specified in Your customer account (“Initial Term”). If the Initial Term is not terminated by either of the Parties pursuant to section 2.2 or 2.3 of these ToS, then the Initial Term shall automatically renew for subsequent twelve (12) month renewal terms, or if You are on a monthly contract (as indicated in Your Order Form), for subsequent one (1) month terms (each a “Renewal Term”, and together with the Initial Term, collectively the “Term”). The Renewal Term will include the services agreed between the Parties at the time of the renewal and any discounts granted shall not automatically apply to the subsequent Renewal Term. For Trial Accounts, the contractual term starts on the Effective Date and ends as individually agreed with a representative of Leapsome (“Trial Period”). If no agreement was made, the Trial Period is fourteen (14) days.
2.2 Termination by You. You can terminate Your Agreement for Fee-based accounts with two (2) months’ notice with effect to the end of the Initial Term or any Renewal Term by contacting Your customer success representative, or, if You have not been assigned one, by contacting Us through the support channels provided within the Software. If You are on a monthly contract (as indicated in the applicable Order Form), You may terminate Your Agreement with two (2) weeks’ notice with effect to the end of the Initial Term or any Renewal Term. For Trial Accounts, you can effectively end your contractual relationship with Us by deleting your account.
2.3 Termination by Us. We may terminate the Agreement or suspend Your access to the Software, without prior notice and without liability to anyone, in cases where You are in breach of any provision of these ToS (including Your payment obligations) or Our Fair Use Principle and have failed to remedy such breach within thirty (30) days of Us notifying You in writing (email acceptable) of such breach. Further, We may terminate the Agreement, effective immediately, if You file, or have filed against You, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of Your creditors, or apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of Your property. For Trial Accounts, we may discontinue this offering at any time.
2.4 Consequences of termination. Upon any termination or suspension, Your right to use the Software or portions of it will permanently or temporarily cease (as applicable), unless otherwise provided in this section. No expiration or termination shall affect Your obligation to pay all Fees (as defined below) that may have become due before such expiration or termination, or entitle You to any refund. Within thirty (30) days from the effective date of Your termination, You may download user data in comma separated value files (.csv) or in a similar readable file format within the Software, to the extent such data has not been deleted by You or Us in accordance with Our privacy policy, which can be found at https://www.leapsome.com/privacy. We may retain such data after termination or expiration of Your subscription. Following this download period, We may deactivate or delete Your login credentials and/or customer account. After termination or permanent suspension of Your subscription to the Software, Your data will be retained in inactive status as long as required, after which it shall be securely and permanently deleted, in each case in accordance with applicable laws.
3. Our Responsibilities
3.1 Access to Our Software. We shall make the Software available to You pursuant to the Agreement for the Term and exclusively for Your internal business purposes.
3.2 Data security. We shall use commercially reasonable efforts to maintain the security and integrity of the Software and Your Customer Data (as defined in section 4.6 of the ToS). WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS, HACKING, OR OTHER SECURITY INTRUSIONS OR FAILURE TO STORE OR THE THEFT, DELETION, CORRUPTION, DESTRUCTION, DAMAGE, OR LOSS OF ANY DATA.
3.3 Availability. In general, and unless the Parties execute a specific “service level agreement”, We will use commercially reasonable efforts to make the Software available on average at least 99.5% of the time over a period of one year, except for planned downtime or during Force Majeure Events (as defined in section 11 of the ToS).
4. Granting of Rights and IP Ownership
4.1 License to the Software. Subject to and conditioned upon Your payment of the Fees (as defined below) and Your compliance with all terms and conditions set forth in the Agreement, We hereby grant You a worldwide, non-exclusive, non-sublicensable, non-transferable (except in compliance with section 13.7), right and license, during the Term and solely by and through Your Authorized Users (as defined below), to access and use the Software via the Interface.
The foregoing license grant and rights of use are limited to Your employees, contractors, and other individuals whom You identify to Us with a unique email address or username as being authorized to use the Software on Your behalf within the number of licenses purchased by you (“Authorized Users”). One license shall be allocated to each Authorized User. These Authorized Users may access the Software via the Interface provided for this purpose, but may not otherwise reproduce the Software, except to the extent expressly permitted by applicable law notwithstanding this restriction.
4.2 Definition of use. “Use” in the sense of these ToS is any temporary or permanent partial or whole accessing of the Software located on Our server in accordance with the Agreement. Use also includes accessing the Software for the purpose of observing, examining, or testing the Software.
4.3 Territory of use. Subject to section 13.1 of these ToS, You are entitled to use the Software worldwide for Your own use within the scope of Your internal business operations, provided that there are no legal restrictions relating to the Software in the country or territory of use.
4.4 Restrictions. Except as expressly permitted by Us, You shall not, and shall require Your Authorized Users not to, directly or indirectly:
(a) use the Software beyond the scope of the license granted under this section 4 or in violation of any law, regulation, or rule;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof;
(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason;
(g) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Our commercial disadvantage; or
(h) use the Software to act as a service provider vis-à-vis third parties without Our express written consent (including via email).
4.5 Reservation of rights. Notwithstanding the rights of use granted pursuant to this section 4, We reserve and shall retain all rights, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to You hereunder. You acknowledge and agree that the Software is provided under license, and not sold, to You. You shall use commercially reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify Us if You become aware of any infringement of Our intellectual property rights in the Software and fully cooperate with Us in connection with any legal action taken by Us to enforce Our intellectual property rights in the Software.
4.6 Content ownership. You retain ownership of all rights, title and interest in and to all content, information, and other data (including, as applicable, any of Your Confidential Information (as defined in section 7 of the ToS) or personal information) uploaded by You to the Software, or otherwise transmitted by You or on Your behalf in connection with Your use of the Software (collectively “Customer Data”) under the Agreement. You are solely responsible for the Customer Data. You represent and warrant that you have sufficient rights to post and upload the Customer Data you provide in accordance with the terms of the Agreement and that none of the Customer Data or its use as contemplated herein will: (i) violate any federal, state, local or foreign law or regulation; (ii) infringe any copyright, trademark or other proprietary right of any third party; (iii) violate or infringe upon any party’s privacy right, right of publicity or any other right of any person or entity; or (iv) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory. For the duration of the Term, You grant Us a non-exclusive, worldwide, royalty-free license to use Customer Data solely to (i) provide the Software to You, and (ii) make improvements to the Software for Your use.
4.7 Usage data. We may aggregate the metadata (including, but not limited to, structural, descriptive, administrative, statistical data) and usage data (including, but not limited to, access or use of certain Modules of the Software) of Authorized Users collected or otherwise made available through the Software (“Aggregated Data”). Provided that it does not reveal any information that is personally identifiable, such Aggregated Data will be deemed Our data, and You acknowledge and agree that We may use the Aggregated Data, both during and after the Term, (i) for Our own internal, statistical analysis, (ii) to develop and improve the Software, and (iii) to create and distribute reports and other materials regarding the use of the Software.
4.8 Updates. We reserve the right to modify, change, refine, add or remove features of the Software, in our sole discretion, without prior notice to you and without liability to anyone. By continuing to access the Software after any changes or modifications, you will be deemed to agree with such changes or modifications and accept the Software as modified. Notwithstanding the foregoing, We shall always preserve the Software's main characteristics according to the applicable Order Form and fulfill material obligations under this Agreement.
4.9 Responsibility for Use of Software. You are responsible and liable for all uses of the Software through access thereto provided by You, directly or indirectly. Specifically, and without limiting the generality of the foregoing, You are responsible and liable for all actions and failures to take required actions with respect to the Software by Your Authorized Users or by any other person to whom You or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of the Agreement.
5. Customer Responsibilities
5.1 Admin user. To operate Your customer account, You are required to appoint at least one administrative point of contact (“Admin User”) who will have to provide a username and password for the customer account. This Admin User shall be responsible for configuring the Software to Your requirements. You shall maintain and update all information You provided during Your registration process and any other information without undue delay, so that it remains accurate, up-to-date, and complete during the Term.
5.2 Responsibility for Software usage. You are responsible for all activity that occurs within Your customer account and for the Authorized Users’ compliance with the Agreement. You shall notify Us promptly of any issues relating to the Software, as applicable, and promptly provide all necessary information and co-operation reasonably required by Us to diagnose and remedy such issues and use all reasonable efforts to prevent any unauthorized access to, or use of, the Software.
6. Fees and Payments
6.1 Fees. For fee-based accounts, You will pay Us the license fees and corresponding taxes (if applicable) as specified on Your invoice, according to Your individual subscription plan (e.g. the number of licenses and modules provided to You) (“Fees”). The Fees are non-refundable. The number of licenses cannot be decreased during the Term unless mutually agreed between the Parties.
6.2 Additional licenses. Any Fees per user will be charged according to the initial number of users listed in the applicable Order Form, plus any additional actual users that You have added, for example through a direct connection to Your internal human resources software (“HRIS”), and that are granted access to the Software. The number of user licenses will be checked by Us on a monthly basis and shall include all Authorized Users that are authorized to use the Software. Any additional licenses will be added to Your minimum licenses, and We will automatically bill and charge You for such additional licenses in accordance with the agreed price per user on a prorated basis for the remaining portion of the Term. This increased number of minimum licenses will apply during the remainder of the applicable Initial Term or Renewal Term and also serve as the minimum licenses for any subsequent Renewal Terms. You may not decrease this number of minimum licenses during the Term, but if You deactivate an Authorized User, You can replace such Authorized User with a new Authorized User at no additional cost.
6.3 Payment. We will charge the Fees to You and You will pay such Fees via the agreed payment method.
6.4 Late Payments. If You do not pay the Fees invoiced to You in full by the respective due date listed on the invoice, We are entitled to demand interest on overdue payments in an amount equal to the lesser of (a) 1.5% per month (compounded monthly), or (b) the highest rate permitted under applicable law, from the first day after the due date for the payment. This does not limit Our right to assert further damages. Further, in cases where You have accrued outstanding and overdue Fees and do not remedy this within thirty (30) days despite Our reminder for payment, We are also entitled to suspend Your customer account (and access to the Software), without liability to anyone, including you or any third party, until payment has been made in full. For the avoidance of doubt, any outstanding and overdue Fees are not waived, offset, or otherwise limited in case of such suspension and must be paid in full.
6.5 Fee increases. The Fee per Authorized User as specified in the applicable Order Form is valid for the entire Initial Term. We may increase the Fees up to 5% effective on commencement of any Renewal Term by giving You notice of such increase at least ninety (90) days prior to the commencement of such Renewal Term.
7. Confidentiality and Marketing
7.1 Definition and commitment to Confidentiality. Each Party (“Receiving Party”) shall treat all proprietary and confidential data, information and materials disclosed or provided by the other Party (“Disclosing Party”) in connection with the Services (“Confidential Information”) as confidential and proprietary of the Disclosing Party and shall not permit such Confidential Information to be disclosed to or used by any third party (other than those of the Receiving Party’s employees, contractors, agents, and other representatives who have a need-to-know and who have agreed to at least as stringent confidentiality obligations as those set forth in the Agreement) and shall not use Confidential Information for any purposes other than for the performance of its obligations and exercise of its rights under the Agreement. The Receiving Party shall maintain the confidence of all such Disclosing Party Confidential Information using safeguards a reasonably prudent business would exercise in similar circumstances, and shall take all reasonable precautions to prevent any unauthorized disclosure of such information.
7.2 Exclusions. For purposes of the Agreement, Disclosing Party Confidential Information shall not include (a) information that is or becomes part of the public domain through no fault of the Receiving Party, (b) information lawfully known by the Receiving Party before it is disclosed by the Disclosing Party, (c) information that is independently developed by the Receiving Party without reliance upon or use of Disclosing Party Confidential Information, or (d) information that is received by Receiving Party from a third party who is not under an obligation of confidentiality with respect to such information. If Receiving Party is required by law or legal process to disclose Disclosing Party Confidential Information to a third party, Receiving Party shall notify Disclosing Party immediately so that Disclosing Party may seek a protective order or other appropriate remedy or, in the discretion of Disclosing Party, waive compliance with the terms of the Agreement. Receiving Party agrees to use reasonable efforts to cooperate with Disclosing Party, at the expense of Disclosing Party, in connection with its efforts to prevent disclosure or seek confidential treatment or any other remedy respecting such requested or required disclosure. In the event that no protective order or other remedy is obtained in a timely manner so as to avoid violation by Receiving Party of the applicable law or legal process, or in the event that Disclosing Party does not make a timely waiver of Receiving Party’s compliance with the terms of the Agreement, then Receiving Party will furnish only that portion of the Confidential Information which it is legally required to furnish, in the reasonable opinion of its legal counsel.
7.3 Equitable Relief. In the event of a breach or a threatened breach of this section 7 by Receiving Party, Disclosing Party shall have the right to seek specific performance and injunctive relief in addition to any and all other remedies and rights at law or in equity, and such rights and remedies shall be cumulative.
7.4 Marketing. By agreeing to these ToS, under a Fee-based account, You agree that We may disclose You as our customer. Further, You grant Us a non-exclusive, worldwide, royalty-free license to use Your company name and logo in Our marketing materials and on Our public website, solely to reference our cooperation and to promote our own services, until the end of the Term.
8. Disclaimer; Limitation of Liability
8.1 Disclaimer. THE SOFTWARE IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LEAPSOME, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, LEAPSOME PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8.2 Limitation of Liability.
(a) IN NO EVENT WILL LEAPSOME OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LEAPSOME WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) WITHOUT LIMITATION OF SECTION 8.2(A), IN NO EVENT WILL LEAPSOME OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR (I) A HARDWARE OR SOFTWARE MALFUNCTION OF ONE OR MORE ELEMENTS OF THE SOFTWARE OR INTERFACE, OR YOUR NETWORK OR OTHER THIRD-PARTY SOFTWARE OR INTEGRATIONS; (II) YOUR IMPROPER USE OF THE SOFTWARE OR CONTRARY TO ITS INTENDED USE PURSUANT TO THESE TOS; (III) AN INCOMPATIBILITY BETWEEN THE SOFTWARE AND YOUR HARD- OR SOFTWARE IMPLEMENTED BY YOU; (IV) A BREACH IN ELECTRONIC COMMUNICATION NETWORKS; (V) A SLOWDOWN OR SATURATION OF THE INTERNET; (VI) A CONTAMINATION OF YOUR INFORMATION SYSTEM BY A COMPUTER VIRUS OR MALWARE; (VII) A FRAUDULENT INTRUSION IN YOUR COMPUTER SYSTEMS; (VIII) ANY UNAUTHORIZED INTERVENTION OF A THIRD PARTY ON THE SOFTWARE THROUGH A CUSTOMER ACCOUNT OF YOURS; (IX) ANY VOLUNTARY ACT OF DAMAGE, MALICIOUSNESS, SABOTAGE OR DETERIORATION, OR (X) ANY DAMAGES RESULTING FROM FORCE MAJEURE AS DESCRIBED IN SECTION 11 OF THE TOS.
(c) IN NO EVENT WILL EACH PARTY’S AND THEIR AFFILIATES', INCLUDING ANY OF THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT AND ITS SUBJECT MATTER EXCEED THE TOTAL AMOUNT PAID TO LEAPSOME PURSUANT TO THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
9. Rights to Software; Indemnity
9.1 Leapsome Indemnification. We will defend You and Your directors, officers, employees, contractors and agents (each, a “Customer Indemnified Party'') from and against any claim asserted by a third party against a Customer Indemnified Party alleging that the Software, when used in accordance with the terms of the Agreement, infringes upon or misappropriates any U.S. intellectual property right of such third party (an “IP Claim”). We will indemnify and hold harmless each Customer Indemnified Party from and against any and all damages, fines, expenses, costs (including reasonable attorney’s fees), losses and liabilities (“Losses'') arising from an IP Claim solely to the extent resulting from a final, non-appealable judgment by a court of competent jurisdiction.
(a) The foregoing indemnification obligation shall not apply to the extent the IP Claim arises out of (i) the use of the Software in combination with other products, processes or materials not provided by Us; (ii) modification of the Software by You or a third party without Our express written authorization; (iii) use of the Software after We notify You of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; (iv) negligence, abuse, misapplication, or misuse of the Software by or on behalf of You, Your representatives, or a third party; (v) events or circumstances outside of Our commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (vi) any Customer Data or other data or materials or content provided by You.
(b) Should the Software as used by You become, or in Our opinion be likely to become, the subject of an infringement or misappropriation claim, We will have the right, at Our option and sole expense, to: (i) procure for You the right to continue to use the Software as contemplated hereunder; (ii) modify the Software to eliminate any such infringement or misappropriation claim that might result from its use hereunder; (iii) replace the Software with equally suitable and functionally equivalent non-infringing software at no additional charge to You; or (iv) terminate the Agreement without further obligation or liability, except that We agree to refund to You the pro-rata portion of any unused Fees prepaid by You. You will give Us prompt notice of each IP Claim for which You seek defense or indemnity pursuant to this section 9.1. You will also reasonably cooperate with Us in the defense of each IP Claim. Our duty to defend is independent of Our duty to indemnify and hold harmless.
9.2 Customer Indemnification. You agree to defend, indemnify, and hold harmless Leapsome, and all of its respective officers, directors, employees, owners, agents, information providers, licensors and licensees, from and against any and all Losses incurred in connection with any claim, suit or cause of action arising from (a) Your conduct in connection with accessing and/or using the Software, (b) Your breach of the Agreement, or (c) any Customer Data. You shall cooperate with Leapsome in the defense of any such claim, suit or cause of action, and You shall not settle or compromise any claim, suit or cause of action without Leapsome’s prior written consent. Leapsome reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder.
10. Data Privacy and use of generative artificial intelligence
10.1 Data Privacy To the extent that We process personal data for the purpose of fulfilling Our contractual obligations, such processing shall be on Your behalf as data controller and Us as a data processor within the meaning of Art. 28 General Data Protection Regulation. Thus, the provisions of Our Data Processing Agreement (“DPA”) which can be found at https://www.leapsome.com/dpa are an integral part of these ToS. By accepting these ToS, You also agree to the terms of Our DPA.
10.2 Leapsome AI. To the extent that You access and use any Leapsome artificial intelligence offerings that provide artificial intelligence-enabled features and functionality to You, such use and access shall be governed by Our AI Terms which can be found at https://www.leapsome.com/terms-ai supplement and form a part of the Agreement.
11. Events Outside of Our Control (Force Majeure)
We will not be liable for any delay or failure to perform any duty or obligation We may have pursuant to the Agreement where such delay or failure has been occasioned by any act of God, fire, strike, inevitable accident, power failure, internet service provider failure or delay, terrorism, insurrection, government restriction or prohibition, war or any other cause outside of Our reasonable control. Any performance times under the Agreement shall be considered extended for a period of time equivalent to the time lost due to any such delay or failure which is excusable hereunder; provided, however, that if such delay shall, in the aggregate, last for a period of more than ninety (90) days, then either Party may, at its option, may terminate the Agreement upon written notice to the other Party.
12. Law and Jurisdiction
12.1 Applicable law. These ToS are governed and construed under the laws of the State of New York, without reference to its conflicts of laws principles.
12.2 Arbitration. Any dispute, controversy, or claim (collectively, “Claim”) relating in any way to the Agreement or Your use of the Software, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to You and Us. However, this arbitration agreement does not govern any Claim by Us for infringement of Our intellectual property or access to the Software that is unauthorized or exceeds authorization granted in the Agreement.
(a) You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision. YOU AND US ARE EACH WAIVING THE RIGHT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION WAIVER”). This arbitration provision will survive any termination of the Agreement. The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of the Agreement). Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules.
(b) The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section above.
If the above Class Action Waiver is found to be unenforceable, then the entirety of the arbitration agreement in this section 12, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, You and Us each waive any right to a jury trial.
13. Miscellaneous
13.1 Export compliance. You represent that you are not an entity identified on, or owned or controlled by or acting on behalf of any individuals or entities identified on U.S. or other applicable government restricted party lists, such as the Specially Designated Nationals (“SDN”) List and Foreign Sanctions Evaders List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, or the Entity List or Denied Persons List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available in any jurisdiction.
13.2 Communication. The Parties agree that communication - also in contractual matters - may take place through the Customer Service Representative assigned to You or through the Software. You undertake to always provide a current email address in Your customer account. If You are not assigned to a Customer Service Representative, We may contact You via Your current email address most recently provided to Us.
13.3 Amendments. We reserve the right to revise and update these ToS from time to time in Our sole discretion. We will inform You about such changes at least six (6) weeks prior to any changes taking effect. Your continued use of the Software following this period means that you accept and agree to be bound by the changes.
13.4 Severability. No waiver by Us of any term or condition set forth in these ToS shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Us to assert a right or provision under these ToS shall not constitute a waiver of such right or provision. If any provision of these ToS is held to be invalid, illegal or unenforceable for any reason by a court of competent jurisdiction, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the ToS will continue in full force and effect. In such a case, the invalid, illegal or unenforceable provision shall be replaced or supplemented by or with a valid, legal and enforceable provision that corresponds as closely as possible to the intent and purpose of these ToS.
13.5 Conflict of Terms. In the event of any conflict between these ToS and the applicable Order Form or other individual agreement, the provisions of the Order Form or other individual agreement shall prevail over the ToS.
13.6 Successors and Assigns. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
13.7 Assignment. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Our prior written consent, which We may give or withhold in Our sole discretion. No delegation or other transfer will relieve You of any of Your obligations or performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this section 13.7 is void ab initio.
13.8 Entire Agreement. These ToS, together with the applicable Order Form, and all other documents that may be incorporated by reference herein or therein, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.