NOTICE: THESE ARE ARCHIVED TERMS. FOR CURRENT TERMS & CONDITIONS CLICK HERE.
Effective March 08, 2016 to October 31, 2017
THIS AGREEMENT GOVERNS THE LICENSE, ACCESS AND USE OF OUR SERVICES, RELATED SOFTWARE AND DOCUMENTATION. IF YOU UNDERTAKE AN EVALUATION OF OUR SERVICES AND RELATED SOFTWARE, THIS AGREEMENT WILL ALSO GOVERN THAT EVALUATION.
EFFECTIVE DATE: AS OF THE DATE YOU ACCEPT THIS AGREEMENT.
THIS AGREEMENT WAS LAST UPDATED ON MARCH 08, 2016.
1. DEFINITION OF TERMS
“Account” means a set of data and Users representing an individual, company or organization with a common billing address, and common Subscription or Subscriptions.
“Account Owner” means the first User, unless subsequently changed through Account management interface, which is responsible for assigning Account roles, inviting additional Users, Subscription and billing management, payment, and Account terminations.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the ability, whether directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
“Agreement” means this Subscription and License Agreement.
“Anonymized Data” means information or data that is anonymized, aggregated or de-identified and/or compiled on a generic basis and which does not name or identify a Client, specific individual or natural person, whether derived from Client Data as defined below, access or usage patterns, or another source.
“Client”, “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Client Data” means all data that is provided to the Services by or on behalf of Client or End Users for the purpose of access, storage, analysis or processing by the Services, including without limitation Personal Information;
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible at nowsecure.com or subdomains of nowsecure.com, within the Software or by login to the applicable Service.
“Evaluation” Any Subscription labeled as evaluation, trial, no cost use, or free plan.
“Harmful Content” means code, files, scripts, or programs intended to deceive, disrupt or do harm to Us or other users of the Services, including, for example, viruses, worms, time bombs and Trojans.
“Other Applications” means a Web-based or offline software application not provided by Us that interoperates with any Service or Software.
“Order Form” means an ordering document, schedule, or similar instrument specifying the Services to be provided hereunder, whether for payment or Evaluation, 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.
“Personal Information” means Client Data that names or identifies a natural person including non-public personal data, such as passport number, social security number, driver’s license number; financial account numbers; or sensitive personal data, when personally identifiable. Personal Information shall not include Anonymized Data.
“Services” means the services that are ordered by You under an Order Form and made available by Us, including associated Software components and Documentation.
“Software” means the software made accessible to You as part of the respective Services, including mobile, web or desktop software as applicable;
“Subscription” means a specific period and level of Services, requiring payment of specified fees or provided at no cost, purchased or accepted by You by means of Order Form(s), whether electronic or written.
“User” or “End User” means an individual who is authorized by You to use a Service pursuant to a valid Order Form and this Agreement, 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 organization.
“NowSecure”, “We,” “Us” or “Our” means viaForensics, LLC dba NowSecure, and its Affiliates.
2. ACCEPTANCE MEANS AND ENTITY
2.1 Manner of Acceptance. By creating an account and using the Services, either by electronic acceptance via web or mobile form, or by executing an Order Form that references this Agreement, You agree to the terms of this Agreement.
2.2 Acceptance for Company or Legal Entity. 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 teh terms “You” or “Your” 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 You may not use the Services.
2.3 Prohibited Access. You may access the Services solely for Your own lawful organization or personal use and You may not access the Services for competitive analysis or monitoring the availability of the Service or measuring its performance or functionality, or for any other benchmark or assessment purpose, without prior written consent from Us. Any party offering a competitive product or service may not access the services for any reason.
3. ACCESS AND USE GRANT; RESTRICTIONS
3.1 Access Grant. Subject to the terms of this Agreement and Your payment of all applicable Fees, We grant You a limited, non-transferable, non-exclusive license to use the Services during the Term detailed in the relevant Order Form, solely for Your own internal organization purposes in accordance with the applicable Terms of Use.
3.2 Limitations. The rights granted hereunder are limited and the Services may only be accessed and used: (a) in the Territory as detailed in the relevant Order Form; (b) in accordance with the functional description of the Service(s) in the Documentation, including the relevant Order Form; and (c) in accordance with applicable Terms of Use for any related Software, including mobile application software, which is provided for use in connection with the Service. All rights not expressly granted to You are reserved to Us and Our licensors.
3.3 Additional Use Restrictions. You may not use the Services outside the scope set out in this Agreement without Our prior written consent, and any consent to amend the scope of Your rights hereunder may be dependent on payment of additional fees. You may not: (a) modify, alter, tamper with or make derivative works based upon the Services; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, except to the extent that applicable law specifically prohibits such restrictions; (c) access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics thereof; (d) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or access to the Services in any way; (e) copy or reproduce all or any part of the Services except as expressly permitted in this Agreement; or (f) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas.
4. YOUR RESPONSIBILITIES
4.1 Client Software and Equipment. You are responsible for obtaining and maintaining all hardware, software and communications equipment necessary to access and use the Services and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services. You acknowledge that minimum hardware, software, and communications requirements apply to use the Services.
4.2 Usage Limits. Unless otherwise provided in the applicable Order Form, the Services are purchased as time-limited Subscriptions and are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, a quantity in an Order Form refers to a specific number of End Users, and the Service or Content may not be accessed by more than that number of Users. If You exceed a contractual usage limit, You agree to reduce Your usage so that it conforms to the limit or execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and pay any invoice for excess usage in accordance with payment terms in the applicable Order Form and this Agreement.
4.3 Actions of End Users. You are responsible for Your actions, including the actions of End Users, while using the Services, and for the contents of Your and their transmissions through the Services. You agree to ensure that You and all End Users will (a) abide by all Laws applicable to use of the Services; (b) not upload or distribute Harmful Content; (c) not interfere with or disrupt the Services, the data contained therein or the networks connected thereto; (d) not attempt to gain unauthorized access to the Services or its related systems or networks; and (e) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
4.4 Passwords and Access. You are responsible for maintaining control over, and the confidentiality of, all End User IDs, usernames, passwords, and other access credentials for the Service. You agree that End Users will not share passwords or user credentials for access to the Services.
4.5 Suspension. In the event of a violation of any obligations under this Section by You or Your End Users (“Service Misuse”), We may suspend access to the affected Services if We reasonably deem necessary in order to stop or minimize the impacts to Us or the Services. When commercially practicable, We will provide prior written notice to You and an opportunity to cure the Service Misuse, and when not commercially practicable, We will give prompt written notice following such suspension to You.
5. OUR RESPONSIBILITIES
5.1 Provision of Services. We will make the Services available to You pursuant to this Agreement and the applicable Order Forms and Terms of Use. We may provide Services in association with Affiliates or contractors, in accordance with the terms of this Agreement, including Confidentiality provisions.
5.2 Protection of Your Data. We will maintain administrative, logical and physical safeguards to protect the security, confidentiality and integrity of Client Data, as described in the Documentation. Safeguards will include measures designed to prevent unauthorized third-party access, as well as prevent access, use, or disclosure of Client Data by Our personnel except (a) in order to provide and improve the Services and prevent or resolve problems, and in accordance with the Confidentiality provisions in this Agreement and published Privacy Policy; (b) as compelled by law as described in this Agreement; or (c) as You expressly permit in writing.
5.3 Service Level. Unless otherwise set forth in the Documentation or Relevant Order Form, we will use commercially reasonable efforts make the Services available 24 hours a day, 7 days a week, except for: (a) limited planned maintenance downtime, of which We shall give at least 8 hours advance electronic notice and which We shall schedule to the extent practicable during non-organization hours; (b) Evaluation, no cost, or Beta Test limited license use; (c) use of specific features as a beta test participant; or (d) any unavailability caused by circumstances beyond Our reasonable control, such as Force Majeure, Internet service provider failure or delay, Network hosting provider failure or delay, or denial of service attack.
5.4 Support. Unless otherwise set forth in the Documentation or Relevant Order Form, and with the exception of Evaluation, no cost, or Beta Test limited license use of the Services, we will provide Our standard support for the purchased Services to You at no additional charge, and upgraded support, if purchased, as specified in the applicable Order Form. Unless otherwise specified on the applicable Order Form, standard support shall mean email-based support with next-organization day response. If We materially downgrade the terms of standard support during a Subscription term, we shall provide at least thirty(30) days advance notice, and offer You the option to terminate any affected Subscription at such time and receive a pro-rata refund of prepaid fees covering future whole months for the remainder of the term. For Evaluation, no cost, or Beta Test limited license use, unless otherwise set forth in writing to the contrary, support shall only be provided in Our sole discretion.
5.5 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
5.6 Modifications to the Services. We may issue modifications to the Services from time to time according to Our development schedule (“Updates”) for which We maintain exclusive control. We are under no obligation under this Agreement to provide any Updates to the Services. We reserve the right, when issuing an Update to the Services to remove any existing feature or functionality from the Services, provided however that We shall make reasonable efforts to keep You apprised of planned changes to the Services. With the exception of Evaluation, no cost, or Beta Test limited license use, We will provide at least thirty (30) days’ notice of removal of features, except in cases of urgent updates for security, stability or similar. If an Update materially undermines your use of the Services, You may terminate the affected Subscription and receive a pro-rata refund of prepaid fees covering future whole months for the remainder of the term.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. We and Our licensors reserve all respective right, title and interest in and to the Services, including all related intellectual property rights, and including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights. We own all rights to any suggestions, ideas, enhancement requests, feedback, recommendations or similar information provided by You or any other party relating to the Services. No rights are granted to You hereunder other than as expressly set forth herein.
6.2 Reservation of Your Rights. To the extent You upload code or other software as a part of this license and with respect to Your logo or trademarked intellectual property, You retain all right, title and interest to Your copyrights, trademarks, service marks, trade names and all other proprietary intellectual property (collectively “Client IP”).
6.3 License Grant for Client Data and Client IP. In order to enable provision of the Services, You grant Us a worldwide limited-term license to host, copy, process and display Client Data, subject to limitations of Confidentiality and the applicable Privacy Policy. This license is granted for the duration of any Subscription term, plus any retention period following termination of a Subscription term, which, under any circumstances shall not exceed one year. To the extent You choose to include Client IP in Client Data (for example, adding a logo to a personalized web page) You grant Us a similar worldwide limited-term license to host, copy, process and display such Client IP, only as necessary to provide You the Services.
6.4 License Grant for Anonymized Data. You grant Us a perpetual, non-exclusive, worldwide right and license to retain, use, adapt, display, and distribute Anonymized Data, whether derived from Client Data or another source, without restriction. By definition, Anonymized Data excludes Personal Information.
6.5 Publicity. You grant us a limited, non-exclusive worldwide right and license to use Your name or logo in Our marketing and public relations materials and to list You as Our client. If You do not wish to have Your name included in specific public materials, You may provide a written request and we will refrain from such use, with the understanding that We may privately identify Our clients to Our actual or prospective partners, suppliers, and customers.
7. FEES AND PAYMENTS
7.1 Fees . You agree to pay the Fees specified in the relevant Order Form. Fees are stated exclusive of all applicable duties, tariffs, and taxes. Unless otherwise specified in the applicable Order Form, (a) all fees and payment obligations are non-cancelable, (b) fees paid are non-refundable, (c) quantities purchased cannot be decreased during the relevant Subscription term set forth in the relevant Order Form, and (d) Service Fees are due in advance for the applicable Subscription term set forth in the relevant Order Form.
7.2 Invoicing and Payment. You agree to provide Us with valid credit card information, or with a valid purchase order or alternative payment method reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial Subscription term and any renewal Subscription term(s) as set forth in this Agreement and specified in 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 promptly of any changes to such information.
7.3 Late Payments. Late payments which are not the subject of a good faith dispute are subject to an interest charge, which is the lesser of: (a) one and one-half percent (1.5%) per month, or (b) the maximum legal rate.
7.4 Taxes. Fees are stated exclusive of all applicable duties, tariffs, and taxes. You agree to pay in addition all applicable duties, tariffs and similar charges which may apply or be charged under applicable Laws as well as all taxes at the appropriate rate resulting from any transaction under this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, organization and other similar taxes, except taxes based on Our own income, personnel or property. You agree to pay directly, or reimburse Us for payment of, any deficiency relating to taxes and other charges that are Your responsibility under this Agreement. Each party shall provide and make available to the other party any exemption certificates, treaty certification or other exemption information reasonably requested by the other party.
7.5 Suspension of Services. We reserve the right to suspend Your rights to access the Services (including by End Users) until overdue Fees and interest are paid in full. All payment obligations are non-cancellable and all amounts paid are nonrefundable except as otherwise set forth herein. If You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, and provided You have paid any undisputed charges, We will not exercise Our rights to Suspension of Service for a period of up to thirty (30) days.
7.6 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality, or dependent on any oral or written comments made by Us or any other party regarding future functionality.
7.7 Evaluation, No Cost Use and Beta Testing
Evaluation. If You enter an Evaluation through web registration or written agreement, You receive a temporary limited license under which We will make one or more Services available to You solely for Your internal evaluation until the earlier of (a) the end of the period for which you registered to use the applicable Service(s), (b) the start date of any Purchased Service Subscriptions ordered by You for such Service(s), or (c) the date identified in any notice from Us as the end of the Evaluation period. Additional terms and conditions may appear on the Evaluation form or agreement, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CLIENT DATA ENTERED INTO OR GATHERED BY THE SERVICES, ANY CUSTOMIZATIONS MADE TO THE SERVICES, OR ANY OUTPUT GENERATED BY OR AS A RESULT OF USING THE SERVICES DURING YOUR EVALUATION MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES BEFORE THE END OF THE EVALUATION. NOTWITHSTANDING ANY WARRANTIES SET FORTH ELSEWHERE IN THIS AGREEMENT, DURING ANY EVALUATION THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. ALL CONFIDENTIALITY REQUIREMENTS AND TERMS OF PRIVACY POLICY SHALL APPLY.
No Cost Use. We may offer the Services at no cost as a Subscription with a name such as Basic, Free or similar designation, with or without definite Term specified at the time of registration. Any such use is an Evaluation and the terms of Evaluation shall apply.
Beta Testing. Certain features of the Services may be added for a trial period without charge for beta testing purposes. Such features shall be licensed on a temporary basis for a temporary period for the purpose of testing, and such features are not part of the base Software or Services. License to the features shall be granted or terminated upon notice by Us in Our sole discretion.
8. CONFIDENTIALITY
8.1 Confidential Information. “Confidential Information” means all 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. Your Confidential Information includes Client Data; Our Confidential Information includes the Services and related data, reports or analysis, Software, Documentation, and all pricing terms related thereto; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as organization and marketing plans, technology and technical information, product plans and designs, and organization 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 will use reasonable care to protect the other Party’s Confidential Information, being no less care that it uses to protect the confidentiality of its own confidential information of like kind, and agrees (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to such information to personnel 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 will disclose the terms of Agreements, Schedules 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 confidentiality requirements herein.
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 will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, 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 Our Warranty. With the exception of Evaluation, no cost, or Beta Test limited license use, We warrant that (a) this Agreement, relevant Order Forms, and the Documentation accurately describe the safeguards in place for protection of the security, confidentiality and integrity of Client Data, (b) the Services will function in all material respects as specified in the Documentation, and (c) We will not materially decrease the overall security of the Services during a Subscription term. For any breach of an above warranty, Your exclusive remedies are those described in Section 13 (Termination). Our Warranty does not apply to (a) improper use of the Service including any noncompliance by You or any End User with Section 5 hereof, (b) errors or problems in Your network or equipment (c) interruptions in Internet access or other downtime caused by network or third party services; or (d) problems caused by any breach by You of Your obligations under this Agreement.
9.3 Your Warranty. You warrant that you have obtained all authorizations, consents and licenses necessary to fully perform this Agreement, to use the Services, to access Client Data provided thereto, and for Us to use the Client Data as permitted in this Agreement.
9.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, NOR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGES AND AGREE THAT WE EXERCISE NO CONTROL OVER, AND ACCEPT NO RESPONSIBILITY FOR, YOUR COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO YOU OR YOUR END USERS. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9.5 No Warranty for High Risk Activities. We specifically disclaim any express or implied warranty of fitness of the Services for usage where the use or failure of the Service could lead to death, personal injury or environmental damage (“High Risk Activities”), including for example the operation of nuclear or chemical processing facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems environments.
10. MUTUAL INDEMNIFICATION
10.1 Our Indemnification of You. With the exception of Evaluation, no cost, or Beta Test limited license use, We agree to defend You in any claim, suit or proceeding brought against You alleging that Your use of the Services infringes on a third party’s intellectual property rights (“Claim Against You”), and to indemnify You from any damages, attorney fees and costs finally awarded against You by a court of competent jurisdiction or included in a settlement approved by Us. This Indemnification of you requires (a) Your prompt written notification to Us of the claim; (b) Your tender to Us of the case and settlement negotiations; (c) Our sole control of the defense and settlement negotiations related to the claim; (d) Your assistance (at Our expense) in the defense or settlement of the claim; and (e) Your avoidance of any admission prejudicial to the defense of the claim. You agree to take all reasonable steps to mitigate losses, and We shall not have any obligation to indemnify You in any claim based on misuse, modification or integration of the Services by You. If We receive information about an infringement claim related to a Service which You use, We may in Our discretion (i) modify the Service so that it no longer infringes, without breaching Our Warranties, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your Subscriptions for the affected Service upon 30 days’ written notice and provide a pro-rata refund of prepaid fees covering future whole months for the remainder of the term.
10.2 Your Indemnification of Us. You agree to defend Us in any claim, suit or proceeding brought against Us alleging that Our authorized use of Your Client Data or Client IP, or Your use of the Service in breach of this Agreement, infringes on a third party’s intellectual property rights (“Claim Against Us”), and to indemnify Us from any damages, attorney fees and costs finally awarded against Us by a court of competent jurisdiction or included in a settlement approved by You. This Indemnification of you requires (a) Our prompt written notification to You of the claim; (b) Our tender to You of the case and settlement negotiations; (c) Your sole control of the defense and settlement negotiations related to the claim; (d) Our assistance (at Your expense) in the defense or settlement of the claim; and (e) Our avoidance of any admission prejudicial to the defense of the claim. We agree to take all reasonable steps to mitigate losses, and You shall not have any obligation to indemnify Us in any claim based on modification or misappropriation of Your Client Data or Client IP. If You receive information about an infringement claim related to Your Client Data or Client IP, You may in Your discretion (i) identify and remove such Client Data or Client IP from the Services, without breaching Your Warranties, (ii) obtain a license for Our continued use of the Client Data or Client IP in accordance with this Agreement, or (iii) terminate Your Subscriptions for the affected Service, provided however that such termination will be considered Termination for Convenience.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. EACH PARTY’S LIABILITY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT PAID BY THE CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE CLAIM. 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. THE ABOVE LIMITATIONS DO NOT LIMIT PAYMENT OBLIGATIONS FOR DULY ORDERED SERVICES.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS OR OF REVENUES, LOSS OF OPERATION TIME, WASTED MANAGEMENT TIME, LOSS OF GOODWILL OR REPUTATION, IN EACH CASE WHETHER CAUSED DIRECTLY OR INDIRECTLY, OR TO GIVE AN ACCOUNT OF PROFITS TO CLIENT OR ANY THIRD PARTY, OR FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE WHATSOEVER AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY.
11.3 Limitations Generally. EXCEPT TO THE EXTENT OF SUCH LIABILITY AS CANNOT BE EXCLUDED BY LAW, THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. EACH OF THE PARTIES ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS FORM AN ESSENTIAL PART OF THE AGREEMENT OF THE PARTIES.
11.4 Time Limit. No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after that party knew or should have known of the event which gave rise to the cause of action.
11.5 Amazon Web Services. In connection with providing access to the Services and performing Our obligations hereunder, We use and rely upon certain cloud computing and web hosting services provided by Amazon Web Services, Inc. “AWS”) pursuant to terms and conditions substantially similar to those specified as of the Effective Date at http://aws.amazon.com/agreement/ and http://aws.amazon.com/ec2/sla/ (collectively, the “AWS Terms”). Notwithstanding anything in this Agreement to the contrary, Our performance, warranty, indemnity and liability obligations specified herein do not include and will not apply to the extent any failure by Us to meet those obligations is a result of AWS’s failure to provide and perform its own services or warranty, indemnity and liability obligations to Us pursuant to the AWS Terms, and in no event will Our liability to You resulting from such failure exceed the liability of AWS to Us pursuant to the AWS Terms.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until Your Account and all Subscriptions hereunder have been terminated or expired.
12.2 Account Termination. The Account Owner may terminate Your Account at any time in writing or using the interface provided for Account Management. Expiration of Subscription(s) will not automatically terminate Your Account. We may terminate Accounts having no User or billing activity for ninety (90) days or more. In no event will termination relieve You of Your obligation to pay any fees for Subscriptions purchased prior to termination.
12.3 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 five (5) days before the end of the relevant Subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least thirty (30) days before the end of a term, in which case the pricing increase will be effective upon renewal and thereafter.
12.4 Termination for Cause. Either party may terminate this Agreement immediately if (i) the other party commits any material breach and fails to cure such default within thirty (30) days after written notice thereof from the non-breaching party; or (ii) the other party enters bankruptcy proceedings, becomes insolvent, or otherwise becomes generally unable to meet its obligations under this Agreement. We may terminate this Agreement immediately if, in Our reasonable discretion, You have violated any of the Terms of Use or the terms set forth in this Agreement or any Relevant Order Form. If this Agreement is terminated by You for Cause, We agree to refund You prepaid fees covering remaining whole months of the term of all Subscriptions after the effective date of termination. If this Agreement is terminated by Us for Cause, You agree to pay any unpaid fees covering the remaining months of the term of all Subscriptions. 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 Effect of Termination. The notification by either party of its intent to terminate this Agreement or any Subscription(s) does not relieve either party of any obligations that have accrued on or before the date on which termination becomes effective. When a Subscription expires or terminates for any reason: (a) Your right to access and use the Services will cease immediately with respect to such Subscription; (b) You agree to pay for the Services provided under such Subscription up to the date of termination, and applicable termination fees (if any); (c) You may request that We conduct a mass export of Your Data, and We agree to provide such export service at Our then-current rates and terms; and (d) Any remaining Subscription(s) will remain subject to the terms and conditions of this Agreement until such Subscription(s) expire or terminate. When an Account is terminated, following the expiration of the standard thirty (30) day retention period or other period if specified the applicable Order Form, We will remove (through delete and anonymize functions) the associated Client Data in Our possession, with the exception of archival copies which will be retained and eventually erased/destroyed according to Our standard backup and retention process. Other than as described herein, We have no obligation to continue to hold, export or return Client Data. We will have no liability for retention or deletion of Client Data so long as we comply with this Agreement, including Confidentiality requirements;
13. LAWS AND COMPLIANCE
13.1 Data Privacy Laws. You agree to comply with all applicable data protection and privacy Laws, including all Laws that govern Your provision of Personal Information to Us so that We may process such Personal Information as contemplated by this Agreement. We agree to comply with all data protection and privacy Laws that are applicable to Us in provision of the Services. To the extent that You have legal requirements that reasonably must be executed by Us, You agree to specify such requirements in a Security Schedule, and the parties will engage in good faith efforts to accommodate those requirements to the extent technically feasible.
13.2 Third Party Requests. We will respond to third party requests about Your Client Data or use of the Services by You or End Users, to the extent any response is required by applicable law. In order to facilitate resolution of these requests, We may pass them on to You or provide contact information for You to such third party. We will notify You of any such request compelling Us to provide Your Client Data to a third party, prior to providing such data, unless notification is legally prohibited or we have reasonable cause to believe such notification could cause harm.
14. OTHER APPLICATIONS
14.1 Integration with Other Applications. The Services may contain features designed to interoperate with Other Applications. To use such features, You may be required to obtain access to Other Applications from their providers, and may be required to grant Us access to Your account(s) on the Other Applications. If the provider of such Application ceases to make the Other Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
15. GENERAL PROVISIONS
15.1 Manner of Giving Notice. 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 organization day after mailing, or (iii) the first organization day after sending by email (provided email shall not be sufficient for an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
15.2 Governing Law. The laws of the State of Delaware and of the United States shall govern the construction, validity and operation of this Agreement and the performance of all obligations hereunder. The applicability of the UN Convention on Contracts for the International Sale of Goods, including any domestic laws that implement such UN Convention in the Territory, and any U.S. implementation of the Uniform Computer Information Transactions Act (UCITA) are hereby excluded.
15.3 Dispute Resolution. Subject first to the following dispute resolution procedures, any dispute arising between the parties shall be settled exclusively by the ordinary courts having jurisdiction at Our normal place of organization in Cook County, Illinois. The parties agree that in the event of a dispute or alleged breach of this Agreement, they will work together in good faith first, to resolve the matter internally within thirty (30) days by escalating it to higher levels of management and, then if necessary and agreed by the parties, to submit to mediation or binding arbitration using a single arbitrator in accordance with the Rules of Commercial Arbitration of the American Arbitration Association and the arbitrator shall award the prevailing party its costs, including reasonable attorneys’ fees and costs, to the degree of such prevailing party’s success. It is the intent of this provision for the parties to work together in a manner designed to most efficiently resolve disputes and avoid litigation. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof. This provision shall not apply to disputes involving confidentiality or infringement of either party’s intellectual property rights or non-payment of fees which shall constitute material breaches of this Agreement, in which case either party shall be free to seek available remedies in any forum.
15.4 Force Majeure. Except for payment obligations, each party shall be excused from failure to perform its obligations under this Agreement if such failure results from causes beyond its reasonable control including acts of God, acts of civil or military authority, government regulations, civil unrest, riots, insurrections, war, terrorist acts, boycotts, embargoes, labor strikes, economic sanctions, storms, floods, fires, explosions, earthquakes, nuclear accidents, power blackouts, volcanic actions, epidemics, pandemics, failures of the internet or telecommunications outside of the parties’ control, or other “force majeure” events. If a force majeure event prevents or delays a party’s performance under this Agreement, it will promptly notify the other party and the notice will describe the circumstances that created the force majeure event and of the obligations which are delayed or prevented. Each party will continue to use commercially reasonable efforts to recommence performance whenever possible and to whatever extent. The other party will use reasonable efforts to mitigate the impact of such an event.
15.5 Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
15.6 Federal Use. In the event that the Software or Services under this Agreement can be construed as “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1), then, if access is acquired by or on behalf of a civilian agency, the US Government acquires this access to commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement and as specified in 48C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If access is acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this access to commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
15.7 Anti-Corruption. You agree that 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 organization do not violate the above restriction. If You learn of any violation of the above restriction, You agree to use reasonable efforts to promptly notify Us of such breach.
15.8 Entire Agreement. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
15.9 Order of Precedence. The parties agree that any term or condition stated in a purchase order or similar purchase documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (from highest to lowest): (1) specific executed Addenda or Exhibits, for the subject matter thereof, (b) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
15.10 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, which will not be unreasonably withheld; provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent 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 will refund to You prepaid fees covering future whole months for 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.
15.11 Relationship of the Parties. Nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties or be deemed to authorize either party to incur any liabilities or obligations on behalf of, or in the name of, the other.
15.12 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. Client’s End Users are specifically not third party beneficiaries to this Agreement.
15.13 No Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
15.14 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.
15.15 Construction. The section headings used throughout this Agreement are for convenience of reference only and shall have no effect upon the construction or interpretation of this Agreement or any part thereof. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders. In construing or interpreting this Agreement, the word “including” shall not be limiting and the word “hereunder” means under this Agreement. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to this Agreement.