THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN ACQUIRELL (“ACQUIRELL,” “WE,” “OUR,” OR “US”) AND YOU AND GOVERNS YOUR PURCHASE AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
We reserve the right to change, at Our sole discretion, the terms of the Agreement. We shall notify You of any such change by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Service at least 30 days before such changes become effective. If you do not agree to such changes, then you must cancel your subscription and stop using the Service before such changes become effective. Your continued use of the Service after the effective date of such changes constitutes your acceptance of and Agreement to such changes.
This Agreement was last updated on November 1, 2021. It is effective between You and Us as of the date of You submitted the first Order Form or from December 1, 2021 (that is late).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
“Intellectual Property Right” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefor, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, knowhow, proprietary processes, formulas, algorithms, or any other intellectual property right, whether registered or unregistered.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Paid Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products, services and content that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation.
“Subscription Term” means the period of time during which You may access the applicable Service as set forth in the applicable Order Form and commencing upon the applicable Order Form Effective Date.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“You” or “Your” means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Paid Services or collected and processed by or for You using the Paid Services.
2. Free Trial
If You register on Our website for a free trial, We shell make one or more Services available to You on a trial basis free of charge until the earlier of (a) depletion of the free trial limit in effect when You registered to use the applicable Service(s), or (b) the start date of any Paid Service subscriptions ordered by You for such Service(s). Free trial may be for a limited period of time or for limited features of the Services. We may require You to register and designate a payment method even for the free trial. We may begin charging Your designated payment method for annual subscription fees plus any applicable tax at the end of the free trial unless You cancel prior to the end of the free trial period. You shell not receive a notice from Us that Your free trial period has ended and Your subscription shall be deemed to have commenced at the end of the free trial. IF YOU CANCEL PRIOR TO THE END OF YOUR FREE TRIAL PERIOD, THERE WILL BE NO CHARGES TO YOUR PAYMENT METHOD. Additional trial terms and conditions may appear on the trial information web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 9 (Warranties and Disclaimers), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. Our Responsibilities
3.1. Provision of Paid Services. We shell (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Paid Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Paid Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay or denial of service attack. We shall provide the Services only in accordance with applicable laws and government regulations. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
3.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
3.4. Personal Data. When You use the Services, the data that You enter is processed and stored on Our servers. Depending on the location of Your Users, the data may cross geographic and/or country borders in route to the servers (“Routing”). If Your User or You elects to enter personal contact details into the Services (such as name, email address, or otherwise), You must inform Your Users of the potential Routing and obtain any required consent. The Services are not designed to accommodate sensitive personal information, such as, for example, individual health or medical information or consumer financial information, and You agree not to input such data into the Services.
4. Use of Services
4.1. Service. The Service is a hosted internet based service which You may only access remotely. Any Documentation for the Service will be provided electronically only.
4.2. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at actual at moment of adding price of corresponding subscription, prorated for the portion of initial subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.3. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Services may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the applicable Order Form. The Services may provide real-time information to enable You to monitor Your compliance with such limitations. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You shell execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment). If You increase the Usage Limits, there will be a corresponding increase in the Fees that was specified in the Order Form. A reduction in usage by You shall not reduce the Usage Limit or the Fees.
4.4. Your Responsibilities. You shell (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, (e) be solely responsible for connection of Your computers to a telecommunications service that provides Internet access in a secure manner. You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data.
4.5. Usage Restrictions. You shell not (a) make the Services available to, or use the Services for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (h) copy, frame or mirror the Services or any part, feature, function or user interface thereof, (i) create derivative works based on the Services, (j) access the Services in order to build a competitive product or service, or (k) reverse engineer the Services (to the extent such restriction is permitted by law), (l) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (m) abuse the Services.
5. Third-Party Providers
5.1. Acquisition of Third-Party Products and Services. Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with the Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
5.3. Integration with Third-Party Applications. The Services may contain features designed to interoperate with Third-Party Applications. To use such features, You may be required to obtain access to Third-Party Applications from their providers, and may be required to grant Us access to Your account(s) on the Third-Party Applications.
6. Fees and Payment for Paid Services
6.1. Fees. You shell pay all fees specified in Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on the Services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. You shell provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Paid Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We shell invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You agree to pay all fees and expenses payable hereunder from Your location specified in Order Form.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 3% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, We shell invoice You and You shell pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
7. Proprietary Rights and Licenses
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Solution and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Solution, including all related intellectual property rights. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Solution. The Acquirell name, the Acquirell logo, and the product names associated with the Solution are trademarks of Acquirell or third parties, and no right or license is granted to use them. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You grant Us and Our Affiliates a worldwide, limited-term, fully-paid, royalty-free, transferable license to use, reproduce, host, copy, transmit and display Your Data, and any Our Solution and program code created by or for You using Solutions, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data of any Third-Party Application or program code. You grant to Us (and applicable Third Party Providers), the non-exclusive, royalty free, worldwide right to use or display any Trademarks that You provide Us for the purpose of inserting them in Your user interface for the Services on the Services pages utilized or attributed to You. You shall have sole responsibility for the entry, completeness, accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Your Data, as well as determining the suitability of the Solution for Your business and complying with any regulations, laws, or conventions applicable to Your Data and Your use of the Services.
7.3. References. You agree that We may issue a mutually agreeable news release regarding Your selection of the applicable Services. Once a press release has been issued, We may publicly refer to You as being an Our customer and use Your name in any publicity material regarding Your selection and use of the Services. We will seek Your permission prior to any further media discussions concerning Your experience using Our solutions.
7.4. Ownership of Our Materials. Subject to Your rights in Your Data, We will own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or generated by Us in connection with performing the Paid Services (collectively “Our Materials”), including all intellectual property rights therein. You will have no rights in Our Materials except as expressly agreed to in writing by the parties. Nothing in these terms will be deemed to restrict or limit Our right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party; provided that We comply with Our confidentiality obligations hereunder. If You provide any suggestions, enhancement requests, recommendations or other feedback We are free to use, copy, modify, distribute, incorporate into any product or service owned by Us, or use in any other manner, and You waive any interest in any Intellectual Property related to such feedback.
7.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8.1. Confidential Information. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party shell use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shell disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this paragraph.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shell reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. Warranties and Disclaimers
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Services Limited Warranty. We warrant that, during the applicable Subscription Term, the Solution will conform in all material respects to the then current Documentation for the applicable Service. Your sole and exclusive remedy, and Our entire liability for breach of this limited warranty, shall be correction of the warranted nonconformity in the Service or, if We fail to correct the warranted nonconformity after using reasonable commercial efforts, We will terminate access to the non-conforming Solution and refund the subscription Fees for such Solution (as identified in an applicable Order Form) paid by You for the remainder of the Subscription Term (beginning with the date You reported the nonconformity). This limited warranty shall not be valid to the extent the warranty nonconformity was caused by Yours abuse, misuse, accident, alteration, or unauthorized modification or installation of the Service. You must identify in a Written Notice to Us any nonconformity of the Service within ninety (90) days of discovery of such nonconformity, in order to receive the above warranty remedies.
9.3. Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION 9, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. WE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES, OR ANY PORTION THEREOF, ARE ERROR OR BUG FREE. WE DO NOT WARRANT THAT THE USE OF THE SERVICES WILL NOT BE INTERRUPTED OR THAT THE SERVICES ARE COMPLIANT WITH ANY SPECIFIC DATA PROTECTION LAWS OR PRIVACY LAWS APPLICABLE TO YOU. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND MERCHANTABILITY. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER THE INTERNET, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DELAYS OR DELIVERY FAILURES CAUSED BY THE INTERNET. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS.
10.1. Indemnification by Us. If a third party claims that Your use of the Services as provided to You infringes any United States patent, copyright, trademark or trade secret, You must promptly notify Us in writing. We shall defend You against such claim if You reasonably cooperate with Us and allow Us to control the defense and all related settlement negotiations, and then We shall indemnify You from and against any damages finally awarded for such infringement or settlements entered into by Us on Your behalf. Notwithstanding the foregoing, We shall have no liability, and shall have no obligation to defend or indemnify You, for any third party claim of infringement based upon (i) use of other than the then current, unaltered version of the applicable Services, unless the infringing portion is also in the then current, unaltered release; (ii) use, operation or combination of the applicable Services with third party programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iii) any third party software; provided, that We shell pass through to You any indemnification received from the owner of such third party software. In the event the use of the Services is, or We believe is likely to be, alleged or held to infringe any third party intellectual property right, We may, at Our sole option and expense, (i) procure for You the right to continue using the affected Service, (ii) replace or modify the affected Service with functionally equivalent service so that it does not infringe, or, if either (i) or (ii) is not commercially feasible, (iii) terminate this Agreement and refund the fees received by Us from You for the affected Service for the remaining term of then-current Subscription Period. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a third party application or Your breach of this Agreement.
10.2. Indemnification by You. You shall defend and hold Us harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Services except for claims covered by Section 10.1 above; (ii) Your violation of this Agreement; or (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; provided, that We (a) promptly give You written notice of the claim; (b) give You sole control of the defense and settlement of the claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for intellectual property rights infringement or allegations by a third party.
11. Limitation of Liability
11.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR SERVICE GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PAID SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR OTHER PERSON OR ENTITY CLAIMING THROUGH SUCH PARTY UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE SERVICES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.3. Basis of Bargain. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON WARRANTIES AND DISCLAIMERS, INDEMNIFICATION AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU EXPRESSLY ACKNOWLEDGE THAT THE FEES THAT WE CHARGE FOR THE SERVICES ARE BASED UPON OUR EXPECTATION THAT THE RISK OF ANY LOSS OR INJURY THAT MAY BE INCURRED BY USE OF THE SERVICES WILL BE BORNE BY YOU AND NOT US AND WERE WE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
12. Term and Termination
12.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Except as otherwise specified in the applicable Order Form, the per-unit pricing during any automatic renewal term shall be at then-current pricing according to subscription plan applicable.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We shell refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You shell pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Provided You have paid all outstanding fees, You shall have the ability to export or retrieve Your Data from the Service at any time during the Term. Subject to Your payment of the applicable fees, You may at any time during the Term and within thirty (30) days after the effective date of termination (“Post-Termination Period”), elect to have Us provide You with a copy of Your Data on physical media. Following the Post-Termination Period, We will have no obligation to maintain or provide Your Data and shall thereafter, unless legally prohibited, delete all Your Data in Our systems or otherwise in Our possession or under Our control.
12.6. Surviving Provisions. Sections 6 (Fees and Payment for Paid Services), 7 (Proprietary Rights and Licenses), 8 (Confidentiality), 9.3 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Portability and Deletion of Your Data) and 14 (General Provisions) will survive any termination or expiration of this Agreement.
12.7. Remedies. Termination of this Agreement or access right shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Yours obligation to pay all Fees that have accrued or are otherwise identified as being owed by You, now or at some future date, under any Order Form.
13. Force Majeure
13.1. Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, terrorist attack, electronic virus, electronic attack or infiltration, internet disturbance, government act or other similar cause beyond such party’s (the “Affected Party”) control (collectively, a “Force Majeure Event”), provided that Affected Party gives prompt Written Notice of such condition, uses reasonable efforts to resume its full performance as soon as possible, and provided further that the other party (the “Non-Affected Party”) may terminate the affected Order if the Force Majeure Event prevents performance of a material obligation and continues for a period of sixty (60) days. During the Force Majeure Event, the Non-Affected Party may similarly suspend its performance obligations, until such time as the Affected Party resumes its performance obligations.
14. General Provisions
14.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
14.2. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of Texas without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable court of the State of Texas.
14.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14.4. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.7. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You shell use reasonable efforts to promptly notify Our Legal Department.
14.8. Entire Agreement and Order of Precedence. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, representations, discussions, and communications, whether oral or in writing concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We shell refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.10. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.12. Attorney Fees. You shell pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
14.13. This Agreement shall not be construed against the party preparing it but shall be construed as if both parties jointly prepared this Agreement, and any uncertainty and ambiguity shall not be interpreted against any one party.
14.14. Section Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
14.15. Third Party Websites. A Solution may allow access to other websites. These linked websites are not under the Our control, and We are not responsible for the contents of any linked website. We provide links only as a convenience, and such inclusion of any link does not imply endorsement by Us of the linked website or any part of its contents. Such linked websites may subject You to terms and conditions between You and the website owner, and/or fees for use such website.