MASTER SUBSCRIPTION
AGREEMENT - Reliability Center, Inc.
THE PARTIES MAY AGREE TO AMEND
OR REPLACE THIS AGREEMENT AT ANY TIME IN THE FUTURE, INCLUDING
AT ANY RENEWAL OF CUSTOMER’S SUBSCRIPTION TO THIS SERVICE IF THE
CUSTOMER IS A SUBSCRIBER RATHER THAN A ONE-TIME USER. ANY SUCH
AGREEMENT MUST BE IN WRITING AND ASSENTED TO BY AN AFFIRMATIVE
ACT BY THE PARTY RECEIVING THE PROPOSAL FOR AMENDMENT OR REPLACEMENT.
THE WRITTEN AGREEMENT MAY BE TERMS PRESENTED ELECTRONICALLY, SUCH
AS A COMPUTER SCREEN PRESENTING TERMS DURING THE SUBSCRIPTION RENEWAL
PROCESS. ASSENT MAY OCCUR BY CLICKING A BUTTON LABELED WITH THE
WORDS “I AGREE” (OR WITH WORDS OF SIMILAR EFFECT) IN RESPONSE TO
SUCH ELECTRONICALLY PRESENTED TERMS (THIS IS “CLICKING ASSENT”).
REGARDLESS OF THE FOREGOING, CUSTOMER IS BOUND BY CLICKING ASSENT
EVEN IF THE PERSON DOING SO IS NOT AUTHORIZED BY CUSTOMER TO ENTER
INTO CONTRACTS, AND EVEN IF THAT PERSON IS NOT AN EMPLOYEE OF CUSTOMER
(E.G., EVEN IF THAT PERSON IS A CONTRACTOR OR AGENT OF CUSTOMER).
ALSO, REGARDLESS OF THE FOREGOING, CUSTOMER WILL BE BOUND BY CLICKING
ASSENT EVEN IF NO ONE AFFILIATED WITH CUSTOMER READS THE ELECTRONICALLY
PRESENTED TERMS AND EVEN IF CLICKING ASSENT OCCURS DUE TO AN AUTOMATED
PROCESS USED BY CUSTOMER. IF CUSTOMER LATER WISHES TO REVIEW THE
TERMS TO WHICH IT ASSENTED, RELIABILITY WILL PROVIDE A COPY UPON
REQUEST. REGARDLESS OF THE FOREGOING, ANY CONTRACTUAL AMENDMENT
OR REPLACEMENT PROPOSED BY CUSTOMER SHALL BE BINDING UPON RELIABILITY
ONLY IF THE PROPOSAL IS IN WRITING AND SIGNED (BY MEANS OF A HANDWRITTEN
SIGNATURE, NOT AN ELECTRONIC SIGNATURE) BY AN OFFICER OF RELIABILITY.
THIS MASTER SUBSCRIPTION AGREEMENT
(“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF SERVICES.
BY ACCEPTING THIS AGREEMENT,
EITHER BY CLICKING A BOX 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" 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 MAY NOT USE THE SERVICES.
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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.
This Agreement was last updated on October 1, 2009. It is effective
between You and Us as of the date of You accepting this Agreement.
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1. DEFINITIONS:
“Administrator” means individuals who purchase Seats for Users
in Your company console. The Administrator initializes all administrative
duties of procurement, renewal, User installations, management
of Users and account communication with Us.
"Purchased Services" means Services that You or Your Affiliates purchase
under an Order Form.
“Seat” means purchased connections by Administrator
for a User. Each Seat is a single license to use
Purchased Services. All Seats are operable.
"Services" means the online, Web-based applications and platform
provided by Us via http://www.proactondemand.com
and/or other designated websites as
described in the User Guide, that are ordered
by You under an Order Form, including associated
offline components but excluding Third Party Applications.
“Templates” mean the individual root-cause analysis
templates contained in the licensed item of Template
Software.
“Template Software” means the current version (as of the initial
subscription date), in electronic form. References to Template
Software include the Templates.
“Template Software Manual” means the manual(s) provided by Us
for the Template Software and designated by Us as the documentation
for such. Specifically,
“Manual” refers to the manual(s) for the
template software. The Manual may address, among
other things, the content of the Templates, the Template Software’s
functions, features, and directions for use.
"Third-Party Applications" means
online, Web-based applications and offline software products
that are provided by third parties, interoperate with the Services,
and are identified as third-party applications, including but
not limited to those listed on the Service Help Pages.
“Trade Secrets” means Our Templates, Template Software
and Template Software Manual.
"User Guide" means the online user guide for the Services, accessible
via http://www.proactondemand.com, as updated from
time to time.
"Users" means individuals who are authorized by You to use the Services,
for whom subscriptions to a Service have been purchased,
and who have been supplied user identifications and passwords by You (or by Us
at Your request). Users may include but are not limited to Your employees, consultants,
contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means Reliability Center,
Inc. described in Section 13 (Who You Are Contracting
With, Notices, Governing Law and Jurisdiction).
"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
all electronic data or information submitted by You to the Purchased
Services.
2. PURCHASED SERVICES:
2.1. Provision of Purchased Services. We shall make the Purchased
Services available to You pursuant to this Agreement and the relevant
Order Forms during a subscription term. 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.
2.2. User Subscriptions. Unless otherwise specified
in the applicable Order Form, (i) Services are purchased
as User subscriptions and may be accessed by no more than the
specified number of Users, (ii) additional User subscriptions
may be added during the subscription term at the same pricing
as that for the pre-existing subscriptions (iii) the added User
subscriptions shall terminate on the same date as the pre-existing
subscriptions. User subscriptions are for designated Users and
cannot be shared or used by more than one User but may be reassigned
to new Users replacing former Users who no longer require ongoing
use of the Services.
3.
USE OF THE SERVICES:
3.1 Our Responsibilities. We shall: (i) provide to
You basic support for the Purchased Services at no additional
charge, and/or upgraded support if purchased separately, (ii)
use commercially reasonable efforts to make the Purchased Services
available 24 hours a day, 7 days a week, except for: (a) planned
downtime (of which We shall give at least 8 hours notice via
the Purchased Services and which We shall schedule to the extent
practicable during the weekend hours from 6:00 p.m. Eastern time
Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability
caused by circumstances beyond Our reasonable control, including
without limitation, acts of God, acts of government, flood, fire,
earthquakes, civil unrest, acts of terror, strikes or other labor
problems (other than those involving Our employees), or Internet
service provider failures or delays, and (iii) provide the Purchased
Services only in accordance with applicable laws and government
regulations. We shall provide Templates that only suggest possible
paths of analysis for certain hypothetical situations. The Templates
may not identify all possible causes of failure in a particular
situation. The Templates have not been customized to Your needs
or purposes. None of the Templates may be appropriate for Your
particular needs or purposes.
3.2. Your Responsibilities. You shall (i) be responsible for Users’
compliance with this Agreement, (ii) be solely responsible for
the accuracy, quality, integrity and legality of Your Data and
of the means by which You acquired Your Data, (iii) use commercially
reasonable efforts to prevent unauthorized access to or use of
the Services, and notify Us promptly of any such unauthorized access
or use, and (iv) use the Services only in accordance with the User
Guide and applicable laws and government regulations. You shall
not (a) make the Services available to anyone other than Users,
(b) sell, resell, rent or lease the Services, (c) use the Services
to store or transmit infringing, libelous, or otherwise unlawful
or tortuous material, or to store or transmit material in violation
of third-party privacy rights, (d) use the Services 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) You are solely responsible for deciding whether and when it
is appropriate to utilize any purchased Templates for root cause
analysis, (g) You are solely responsible for deciding whether and
when a purchased Template must be modified to conduct an appropriate
root cause analysis, or (f) attempt to gain unauthorized access
to the Services or their related systems or networks.
3.3. Usage Limitations. 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.
4. THIRD PARTY PROVIDERS:
4.1. Acquisition of Third-Party Products and Services. We may
offer Third-Party Applications for sale under Order Forms. Any
other 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. No purchase of third-party products or services
is required to use the Services.
4.2. Third-Party Applications and Your Data. Should Third-Party
applications become available during the course of your subscription
to Service you agree that if You install or enable Third-Party
Applications for use with 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. The Services shall allow
You to restrict such access by restricting Users from installing
or enabling such Third-Party Applications for use with the Services.
5. FEES AND PAYMENT FOR PURCHASED SERVICES:
5.1. User Fees. You shall pay all fees specified in all 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 services purchased and not actual usage,
(iii) payment obligations are non-cancelable and fees paid are
non-refundable, and (iv) the number of User subscriptions purchased
cannot be decreased during the relevant subscription term stated
on the Order Form. User subscription fees are based on annual periods
that begin on the subscription start date and each annual anniversary
thereof; therefore, fees for User subscriptions added in the middle
of a annual period will be charged for that full annual period.
5.2. Invoicing and Payment. You will 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 for all Services listed in the Order Form for the initial
subscription term and any renewal subscription term(s) as set forth
in Section 11.2 (Term of Purchased User 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 will 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 maintaining complete and
accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from You
by the due date, then at Our discretion, (a) such charges may accrue
late interest at the rate of 1.5% 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 5.2 (Invoicing
and Payment).
5.4. 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.
5.5. Payment Disputes. We shall not exercise Our rights under
Section 5.3 (Overdue Charges) or 5.4 (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.
5.6. 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, the appropriate amount shall be invoiced to and paid
by You, 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 it based
on Our income, property and employees.
6. PROPRIETARY RIGHTS:
6.1. Reservation of Rights. Subject to the limited rights expressly
granted hereunder, We reserve all rights, title and interest in
and to the Services and Trade Secret property, including all related
intellectual property rights. No rights are granted to You hereunder
other than as expressly set forth herein.
62. Restrictions. You shall not (i) permit any third party to
access the Services and or Trade Secret Property except as permitted
herein or in an Order Form, (ii) create derivate works based on
the Services or Trade Secret Property , (iii) copy, frame or mirror
any part or content of the Services, other than copying or framing
on Your own intranets or otherwise for Your own internal business
purposes, (iv) reverse engineer the Services, or (v) access the
Services in order to (a) build a competitive product or service,
or (b) copy any features, functions or graphics of the Services
or Trade Secret Property .
6.3. Ownership of Your Data. As between Us and You, You exclusively
own all rights, title and interest in and to all of Your Data.
6.4. Suggestions. We shall have a royalty-free, worldwide, transferable,
sublicenseable, irrevocable, perpetual license to use or incorporate
into the Services any suggestions, enhancement requests, recommendations
or other feedback provided by You, including Users, relating to
the operation of the Services.
7. CONFIDENTIALITY:
7.1. Definition of Confidential
Information. As used herein, " 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. Your Confidential Information shall
include Your Data; Our Confidential Information shall include the
Services; Our Trade Secret property; and Confidential Information
of each party shall include the terms and conditions of this Agreement
and all Order Forms, 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
(other than Your Data) shall 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.
7.2. 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.
7.3. 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 7.4
(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.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to
do so, provided the Receiving Party gives the Disclosing Party
prior notice of such 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 such Confidential Information.
8. WARRANTIES AND DISCLAIMERS:
8.1. Our Warranties. We warrant that (i) the Services shall perform
materially in accordance with the User Guide. For any breach of
either such warranty, Your exclusive remedy shall be as provided
in Section 11.3 (Termination for Cause) and Section 11.4 (Refund
or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that
(i) it has the legal power to enter into this Agreement, and (ii)
it will not transmit to the other party any Malicious Code (except
for Malicious Code previously transmitted to the warranting party
by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER
PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION:
9.1. Indemnification by Us.
We shall defend You against any claim, demand, suit, or proceeding
(" Claim") made or brought
against You by a third party alleging that the use
of the Services as permitted hereunder infringes or misappropriates
the intellectual property rights of a third party, and shall
indemnify You for any damages finally awarded against, and for
reasonable attorney’s fees incurred by, You in connection with
any such Claim; provided, that You (a) promptly give Us written
notice of the Claim; (b) give Us sole control of the defense
and settlement of the Claim (provided that We may not settle
any Claim unless the settlement unconditionally releases You
of all liability); and (c) provide to Us all reasonable assistance,
at Our expense.
9.2. Indemnification by You. You shall defend Us against any Claim
made or brought against Us by a third party alleging that Your
Data, or Your use of the Services in violation of this Agreement,
infringes or misappropriates the intellectual property rights of
a third party or violates applicable law, and shall indemnify Us
for any damages finally awarded against, and for reasonable attorney’s
fees incurred by, Us in connection with any such Claim; 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.
9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification)
states the indemnifying party’s sole liability to, and the indemnified
party’s exclusive remedy against, the other party for any type
of Claim described in this Section.
10. LIMITATION OF LIABILITY:
10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT
TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID
BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING
SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES
AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT
SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED
BY APPLICABLE LAW.
11.
TERM AND TERMINATION:
11.1. Term of Agreement. This Agreement commences on the date
You accept it and continues until all User subscriptions granted
in accordance with this Agreement have expired or been terminated.
11.2. Term of Purchased User Subscriptions. User subscriptions
purchased by You commence on the start date specified in the applicable
Order Form and continue for the subscription term specified therein.
Except as otherwise specified in the applicable Order Form, all
User subscriptions shall automatically renew for an additional
period equal to the expiring subscription term, unless either party
gives the other notice of non-renewal at least 30 days before the
end of the relevant subscription term. The per-unit pricing during
any such renewal term shall be the same as that during the prior
term unless We have given You written notice of a pricing increase
at least 30 days before the end of such prior term, in which case
the pricing increase shall be effective upon renewal and thereafter.
Any such pricing increase shall not exceed 7% over the pricing
for the relevant Services in the immediately prior subscription
term, unless the pricing in such prior term was designated in the
relevant Order Form as promotional or one-time.
11.3. Termination for Cause. 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.
11.4. Refund or Payment upon Termination. Upon any termination
for cause by You, We shall refund You any prepaid fees covering
the remainder of the term of all subscriptions after the effective
date of termination. Upon any termination for cause by Us, You
shall pay any unpaid fees covering the remainder of the term of
all Order Forms after the effective date of termination. In no
event shall any termination relieve You of the obligation to pay
any fees payable to Us for the period prior to the effective date
of termination.
11.5. Return of Your Data. Upon request by You made within 30
days after the effective date of termination of a Purchased Services
subscription, We will make available to You for download a file
of Your Data in comma separated value (.csv) format along with
attachments in their native format. After such 30-day period, We
shall have no obligation to maintain or provide any of Your Data
and shall thereafter, unless legally prohibited, delete all of
Your Data in Our systems or otherwise in Our possession or under
Our control.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased
Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer),
9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4
(Refund or Payment upon Termination), 11.5 (Return of Your Data),
12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction)
and 13 (General Provisions) shall survive any termination or expiration
of this Agreement.
12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING
LAW AND JURISDICTION:
12.1. General. You are contracting with Reliability Center, Inc.,
P.O. Box 1421, Hopewell, VA, 23860, USA. You should direct notices
under this Agreement to this address. Virginia law will apply to
any lawsuit arising out of or in connection with this Agreement.
Federal courts in the U.S. District Court for the Eastern District
of Virginia (Richmond Division) can adjudicate any such lawsuit
under this Agreement.
12.2. 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 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.
12.3. Agreement to Governing Law and Jurisdiction. Each party
agrees to the applicable governing law above without regard to
choice or conflicts of law rules, and to the exclusive jurisdiction
of the applicable courts above.
12.4. 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.
13. GENERAL PROVISIONS:
13.1. 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.
13.2. 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.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries
to this Agreement.
13.4. Waiver and Cumulative Remedies. 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.
13.5. Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be contrary to law, the
provision shall be modified by the court and interpreted so as
best to accomplish the objectives of the original provision to
the fullest extent permitted by law, and the remaining provisions
of this Agreement shall remain in effect.
13.6. Attorney Fees. You shall 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 5.2 (Invoicing and Payment).
13.7. Assignment. Neither party may assign any of its rights or
obligations hereunder, whether by operation of law or otherwise,
without the prior written consent of the other party (not to be
unreasonably withheld). Notwithstanding the foregoing, either party
may assign this Agreement in its entirety (including all Order
Forms), without consent of the other party, to its Affiliate or
in connection with a merger, acquisition, corporate reorganization,
or sale of all or substantially all of its assets not involving
a direct competitor of the other party. A party’s sole remedy for
any purported assignment by the other party in breach of this paragraph
shall be, at the non-assigning party’s election, termination of
this Agreement upon written notice to the assigning party. In the
event of such a termination, We shall refund to You any prepaid
fees covering the remainder of the term of all subscriptions after
the effective date of termination. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
13.8. Entire Agreement. 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 or representations, written or oral, 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.
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