Journyx Master Services, subscription and license agreement
THIS JOURNYX MASTER SERVICES, SUBSCRIPTION AND LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF THE SERVICES. YOU WILL NEED TO SCROLL DOWN TO READ THIS AGREEMENT IN ITS ENTIRETY.
YOUR ACCEPTANCE OF THIS AGREEMENT IS EFFECTED BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING ALL OR ANY PART OF THE SERVICES. BY ACCEPTING THIS AGREEMENT OR, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THOSE SECTIONS BELOW TITLED “LIMITATION OF LIABILITY,” “WARRANTIES AND DISCLAIMER,” AND “GOVERNING LAW.” BY ACCEPTING THIS AGREEMENT, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE. IF YOU DO NOT AGREE, DO NOT CLICK THE BOX INDICATING YOUR ACCEPTANCE, EXECUTE AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR USE ALL OR ANY PART OF THE SERVICES.
IF YOU ACCEPT THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH COMPANY OR 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.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR USE OF THE SERVICES DURING THAT FREE TRIAL.
You may not access or use the Services If You provide products or services that are competitive with the Services, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring its availability, performance or functionality, any benchmarking or competitive purposes.
This Agreement is effective between You and Us as of the date of Your acceptance of this Agreement (“Effective Date”).
“Affiliate” means any entity which 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.
“Documentation” means all documents and other information that We provide to You to assist You in understanding and using the Services, including but not limited to the user guides and other documents accessible at http://www.journyx.com, as updated by Us from time to time.
“Journyx” means Journyx, Incorporated.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-Journyx Applications” means products and services (including professional services, associated offline components, downloadable products and commercial off-the-shelf software) that are not provided to you by Journyx.
“Order Form” means written documents that are entered into between You and Us or any of Our Affiliates from time to time to place Your orders hereunder, including addenda and supplements thereto. When You enter into an Order Form hereunder, Your Affiliates agree to be bound by the terms of this Agreement as if they were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the Journyx products and services (including professional services, associated offline components and downloadable products) that You order under a free trial or an Order Form that are made available by Us online athttp://www.journyx.com, at other web pages designated by Us, or that We may supply to You by other means (including email). “Services” exclude Non-Journyx Applications.
“Users” means individuals that You authorize to use the Services and who have been provided with 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, and third parties with which You transact business.
“We,” “Us” or “Our” means Journyx.
“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 any and all electronic information or data submitted by You to the Purchased Services or entered by You into the Purchased Services (or provided by You and entered by Us at Your request).
2. FREE TRIAL
If You register on our website (or successfully register with us in some other way as We may offer from time to time)for a free trial, We will make one or more Services available to You free of charge on a trial basis until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional terms and conditions that apply to the free trial may appear on the trial registration web page or other trial request form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding between You and Us.
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 DELETED, AND THEREFORE NO LONGER AVAILABLE TO YOU, AFTER THE END OF THE TRIAL 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 SUBSTANTIVELY DIFFERENT PRODUCT VERSION OR PRODUCT CONFIGURATION FROM, OR AN ENTIRELY DIFFERENT PRODUCT THAN, THAT COVERED BY THE TRIAL.
NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. Subject to the terms and conditions of this Agreement and the relevant Order Forms, We agree to make the Purchased Services available to You during the 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.
3.2. Licensing of Offline Components. Subject to the terms and conditions of this Agreement, we hereby grant You a non-exclusive, non-transferable license to use, execute, and display one copy of the object code version of any offline component of the Services that You install on Your servers or workstations during the term of this Agreement. The foregoing license may be revoked in its entirety at any time You are in breach of this Agreement. We reserve all rights not expressly granted to You.
3.3. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased on a per-User basis, and some of the service functionality will become unavailable when access is attempted by more than the specified number of Users, (ii) additional User subscriptions may be purchased by means of an additional Order Form or other communication means as may be mutually agreed upon by You and Us, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.
4. USING THE SERVICES
4.1. Protection of Your Data. We agree to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data that are consistent with industry standards. Without your prior consent, we agree not to (a) modify Your Data except as expressly permitted by You to provide customer support or professional services, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure), or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with professional services or customer support matters.
4.2. Our Responsibilities. During Your subscription term and provided You are not in breach of this Agreement, We agree to: (i) provide maintenance and support for the Purchased Services to You under our then-current maintenance and support procedures (a description of which may be found on our website, or otherwise provided to You by Us upon Your request) and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, with availability targeted at a minimum of 99.9%, except for: (a) planned downtime (of which We agree to give You at least two (2) business days’ notice for non-emergency downtime via the Purchased Services and which We agree to schedule to the extent practicable during the weekend hours from 9:00 p.m. Central on Friday to 12:00 p.m. Central on Sunday), (b) downtime in response to Your request for support of, or modifications to, the Purchased Services, or (c) unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, Internet service provider failures or delays, failures or delays caused by Your servers or equipment, or denial of service attacks.
4.3. Your Responsibilities. You agree to (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquire and use 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 Documentation. You agree not to (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 tortious 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 online Services, (f) attempt to gain unauthorized access to the online Services or their related systems or networks, (g) copy, reproduce, decompile, appropriate the source code of, reverse assemble, or reverse engineer any offline components of the Services, or (h) use the Services in any way that violates applicable laws and government regulations.
5. NON-JOURNYX applications and services
5.1. Non-Journyx Applications and Your Data. If You install or enable Non-Journyx Applications for use with the Services, You acknowledge that providers of those Non-Journyx Applications may be allowed, by You or Us, to access Your Data as required to permit interoperation of such Non-Journyx Applications with the Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non- Journyx Application providers.
5.2. Integration with Non-Journyx Services. The Services may contain or include features or components (including offline components) designed to interoperate with Non-Journyx Applications. You may be required to obtain access to such Non-Journyx Applications from their providers before You can use such features. If the provider of any such Non-Journyx Application ceases to make the Non-Journyx Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You agree to pay all fees or charges accruing to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is payable. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) 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 service periods specified on the relevant Order Form that begin on the subscription start date and each service period anniversary thereof; therefore, fees for User subscriptions added in the middle of a service period will be charged for that full service period and the service periods remaining in the subscription term. We reserve the right to modify Our fees and charges at any time, upon at least 30 days prior notice to You, which notice may be provided by email. You agree to provide Us with complete and accurate billing and contact information, including street, mailing and email addresses.
6.2. 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 card for all 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 User Subscriptions). Such charges shall be made in advance of the service period, 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 providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. Any charges not received from You by the due date may accrue, at Our discretion, 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.
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 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 and your Affiliates until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending Services to You.
6.5. Payment Disputes. We agree not to exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated in the applicable Order Form, 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.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You agree not to (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (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.
7.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code solely as necessary for Us to provide the online components of the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
7.5. Suggestions. You hereby grant us a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Your Users, relating to the operation of the Services.
7.6. 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 conveyed 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. 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; and Confidential Information of each party agrees to 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.
8.2. Protection of Confidential Information. 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). The Receiving Party agrees (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, 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. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. 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.
9. WARRANTIES AND DISCLAIMER
9.1. Our Warranties. We warrant that (i) this Agreement constitutes a valid, binding, and enforceable obligation of Ours, (ii) the Services shall perform materially in accordance with the Documentation, (iii) subject to Section 5.2 (Integration with Non-Journyx.com Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
9.2. Your Warranties. You warrant that this Agreement constitutes a valid, binding, and enforceable obligation of Yours.
9.3. Disclaimer. THE LIMITED WARRANTY PROVIDED IN SECTION 9.1 (“OUR WARRANTIES”) IS THE ONLY WARRANTY PROVIDED BY US HEREUNDER. WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES REGARDING TITLE OR AGAINST INFRINGEMENT, OR ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WE DO NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES OR ANY PROFESSIONAL SERVICES WORK PRODUCTS DELIVERED TO YOU CAN OR WILL BE CORRECTED. FURTHER, WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES OR ANY PROFESSIONAL SERVICES OR ANY RECOMMENDATIONS WE MAY PROVIDE. THIS SECTION 9 STATES OUR SOLE LIABILITY, AND YOUR SOLE REMEDY, WITH RESPECT TO THE PRODUCTS AND SERVICES AND SUCH REMEDIES ARE IN LIEU OF ALL OTHER REMEDIES (AT LAW OR IN EQUITY OR OTHERWISE).
9.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, demonstration, pilot, limited release, developer preview, nonproduction or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
10. INDEMNIFICATION AND REMEDY
10.1. Indemnification. We agree to defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that Your use of the Services in accordance with the Documentation within the United States directly misappropriates a third party’s trade secret or infringes a third party’s copyright (a “Claim Against You”), and agree to indemnify You for any damages that a court may finally award against You for such misappropriation or infringement; provided that You (a) promptly notify Us in writing of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); (c) provide to Us all reasonable assistance; and (d) are not in breach of this agreement at the time of the Claim Against You. In the event of a Claim Against You, or if We reasonably believe a Claim Against You appears possible, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe, without breaching Our warranties under “Our Warranties” above, (ii) secure for You the right to continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination. We are not obligated to defend, or be liable for any costs and damages hereunder if the infringement claim arises (a) from Your use of the Services other than as permitted under this Agreement; (b) from the combination, operation, or use of the Services with any Non-Journyx Applications in ways that result in non-conformance to the Documentation; (c) from Your unauthorized modification of the Services; or (d) from Your use of the Services in the practice of a process.
10.2. Exclusive Remedy. This Section 10 (Indemnification and Remedy) states Our sole liability, and Your exclusive remedy, for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR LIABILITY SHALL NOT EXCEED THE FEES PAID BY YOU TO US DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OR ACT OR OMISSION GIVING RISE TO THE CLAIM (THE “CONSIDERATION AMOUNT”), HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
11.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS OR INVESTMENT OR THE LIKE, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OF OTHER FINANCIAL LOSS OR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH THE SALE, MAINTENANCE, USE, PERFORMANCE, FAILURE, OR INTERRUPTION OF THE SERVICES, EVEN IF YOU OR YOUR AUTHORIZED REPRESENTATIVE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT ANY EXCLUSION, LIMITATION OR OTHER PROVISION CONTAINED IN THIS AGREEMENT SHALL BE HELD TO BE INVALID FOR ANY REASON AND WE BECOME LIABLE FOR LOSS OR DAMAGE, SUCH LIABILITY IS LIMITED TO THE AMOUNT SET FORTH IN SECTION 11.1 AND NO MORE.
12. TERM AND TERMINATION
12.1. 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. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. 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 successive one-year periods, unless one of the parties: (i) gives the other party notice of non-renewal at least 30 days before the end of the relevant subscription term, or (ii) otherwise terminates this Agreement earlier in accordance with the terms and conditions of the Agreement.
12.3. 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.
12.4. 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.
12.5. 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 a format mutually agreeable to the parties. 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.
12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8(Confidentiality), 9.3 (Disclaimer), 10 (Indemnification and Remedy), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Governing Law) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
13. GOVERNING LAW
13.1. Governing Law. Each party agrees that the laws of the state of Texas, without giving effect to its principles of conflicts of law, govern all adversarial proceedings arising out of this agreement or arising out of disclosure or use of Confidential Information.
13.2. 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 indemnification 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.
13.3. Agreement to Jurisdiction. Each of the parties irrevocably submits to the exclusive jurisdiction of the United States District Court for the Western District of Texas and of the state courts of Travis County, Texas, for purposes of any legal proceedings arising out of or relating to this Agreement.
14. basis of bargain
The warranties and disclaimer, indemnification and remedy, and limitation of liability set forth herein are fundamental elements of the basis of the Agreement between Us and You. We would not be able to provide the Services on an economic basis without such limitations. Such limitations inure to the benefit of Our customers and the users of our Services.
15. GENERAL PROVISIONS
15.1. Export Compliance. The Services, 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 Services 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.
15.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment or gift 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 will use reasonable efforts to promptly notify Us.
15.3. 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.
15.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
15.6. 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.
15.7. 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.
15.8. 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 signed 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, the terms of such exhibit or addendum, shall prevail, solely to the extent of the inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or Your other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.