CLEARPOINT METRICS TERMS OF SERVICE
THESE TERMS OF SERVICE (THIS "AGREEMENT") GOVERN YOUR 15-DAY FREE TRIAL ("TRIAL PERIOD") OF THE SERVICES, AND, IF YOU PURCHASE OUR SERVICES, YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
IMPORTANT: DO NOT CLICK ON THE 'I AGREE' BUTTON UNTIL YOU HAVE READ THIS AGREEMENT. BY CLICKING ON THE "I AGREE" BUTTON (OR AUTHORIZING ANY OTHER PERSON TO DO SO), YOU AGREE TO ALL OF 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 TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE "I AGREE" BUTTON AND DO NOT USE THE SERVICES.
This Agreement was last updated on January 31, 2010. It is effective between the individual, company or other legal entity for which you are agreeing to all of the terms of this Agreement, or entity ("You" or "Your") and ClearPoint Metrics, Inc ("We," "Us" or "Our")as of the date You click on the "I Agree" button.
Table of Contents
- DESCRIPTION OF SERVICES
- NOTICE SPECIFIC TO SOFTWARE AVAILABLE IN CONNECTION WITH THE SERVICES.
- PRIVACY POLICY
- 15-DAY FREE TRIAL
- PURCHASED SERVICES
- USE OF THE SERVICES
- THIRD PARTY PROVIDERS
- FEES AND PAYMENT FOR PURCHASED SERVICES
- PROPRIETARY RIGHTS
- CONFIDENTIALITY
- WARRANTIES AND DISCLAIMERS
- MUTUAL INDEMNIFICATION
- LIMITATION OF LIABILITY
- TERM AND TERMINATION
- COMPLIANCE WITH LAWS.
- GENERAL TERMS AND PROVISIONS.
1. DESCRIPTION OF SERVICES
We provide You with access to a variety of resources, including on-line, Web-based applications and platforms via http://www.measuresharecompare.com/ and/or other designated websites, including associated offline components ("Services"). The Services may be ordered by You as part of a Trial Period or under an Order Form (as defined below). The Services, including any updates, enhancements, new features, and/or the addition of any new applications and platforms, are owned and operated by ClearPoint Metrics, Inc and are being provided to You under the terms and conditions of this Agreement, the User Guide and any license agreement for a Trial Period of certain Services and/or Purchased Services (as defined below). Unless otherwise specified in a license agreement, the Services are for Your internal business purposes and non-commercial use and You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services.
2. NOTICE SPECIFIC TO SOFTWARE AVAILABLE IN CONNECTION WITH THE SERVICES.
Any software that is made available to download from the Services ("Software") is the copyrighted work of ClearPoint Metrics, Inc and/or its licensors. Use of the Software is governed by the terms of the applicable license agreement, which accompanies or is included with the Software ("License Agreement"). You will not be able to install any Software that is accompanied by or includes a License Agreement, unless You first agree to the License Agreement terms. Third party software and applications are not provided to You as part of the Services.
The Software is made available for download solely for use by Named Users (as defined below) according to the License Agreement. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS WARRANTED IN THE LICENSE AGREEMENT, WE AND OUR LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SOFTWARE, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
3. PRIVACY POLICY
Our current privacy policy is available at http://www.measuresharecompare.com/privacy-policy/ and is incorporated into this Agreement by reference. We reserve the right to modify the Privacy Policy in accordance with the modification procedures set forth in the Privacy Policy.
4. 15-DAY FREE TRIAL
We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the fifteenth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services (as defined below) ordered by You. Additional trial terms and conditions appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL PERIOD OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 11 (WARRANTIES AND DISCLAIMERS), DURING THE TRIAL PERIOD THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
Please review the online user guide for the Services, accessible via http://www.measuresharecompare.com/, as updated from time to time ("User Guide") during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
5. PURCHASED SERVICES
5.1. Provision of Purchased Services. We will make certain Services (the "Purchased Services") available to You pursuant to this Agreement and Our relevant ordering documents, which shall be deemed incorporated herein by reference ("Order Forms") during a subscription term therein. You agree that Your purchase of the Purchased Services 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.
5.2. Named User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as Named User subscriptions and may only be accessed by the specified number Named Users, (ii) additional Named User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Named User subscriptions are added, and (iii) the added Named User subscriptions shall terminate on the same date as the pre-existing subscriptions. Named User subscriptions are for designated Named Users and cannot be shared or used by more than one Named User but may be reassigned to new Named Users replacing former Named Users who no longer require ongoing use of the Services. For purpose of this Agreement, "Named Users" means individuals who are invited by You to use the Services and for whom subscriptions to a Service have been purchased. Named Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
6. USE OF THE SERVICES
6.1. Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services and any Software at no additional charge, and/or upgraded support pursuant to the terms of an Order Form if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services and Software 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. Pacific time Friday to 3:00 a.m. Pacific 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 may, from time to time as determined by Us in Our sole discretion, create revisions of or updates to the Software, which shall be treated for all purposes under this Agreement as Software, and all related intellectual property rights shall be retained by Licensor.
6.2. Your Responsibilities. You shall (i) be responsible for Your and Your Named Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of all electronic data or information submitted by You in connection with the Services ("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 Named Users, (b) sell, resell, rent, lease or create derivate works based on the Services, (c) 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, (d) reverse engineer the Services, (e) 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, (f) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs ("Malicious Code"), (g) interfere with or disrupt the integrity or performance of the Services or third party data contained therein, or (h) attempt to gain unauthorized access to the Services or their related systems or networks. 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.
6.3. Audit Rights. You shall permit Us to audit the Services in order to establish the name and password of each Named User. Such audit may be conducted no more than once per quarter, at Our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Your normal conduct of business. If any of the audits reveal that any identification name and password has been provided to any individual who is not an Named User, then without prejudice to Our other rights, such identification names and passwords shall be promptly disables and We will not issue any new identification names and passwords to any such individual. If any of such audits reveal that You have underpaid subscription fees to Us, You shall pay to US an amount equal to such underpayment as calculated in accordance with the prices set out in the applicable Order Form within 10 days of the date of the relevant audit plus any interest accrued in accordance with Section 8.3 below as calculated from the date on which such fees should have been due and payable. Notwithstanding the foregoing, You understand that We will, periodically, remotely audit Your use of the Services to determine if Your usage is exceeding the terms of this Agreement, including, but not limited to, the number of Named Users for which You have paid. If You use the Services in excess of those for which You have paid, then You will be charged for those additional Services on the terms set forth herein.
6.4. 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, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
7. THIRD PARTY PROVIDERS
Service features that interoperate with Amazon Web Services products and/or solutions depend on the continuing availability of the Amazon Web Services' platform and program for use with the Services. If Amazon Inc. ceases to make the Amazon Web Services platform or program available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
8. FEES AND PAYMENT FOR PURCHASED SERVICES
8.1. 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 Named User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Named User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for Named User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
8.2. 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 14.2 (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 15 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
8.3. 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 8.2 (Invoicing and Payment).
8.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 15 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.
8.5. Payment Disputes. We shall not exercise Our rights under Section 8.3 (Overdue Charges) or 8.4 (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.
8.6. 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 Us based on Our income, property and employees.
9. PROPRIETARY RIGHTS
9.1. 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.
9.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
9.3. Suggestions. We shall have a royalty-free, fully paid-up, 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.
9.4. Federal Government End Use Provisions. If We provide the Services, including related software and technology, to any a unit or agency of the United States Government (the "Government"), the 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 the Government 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.
10. CONFIDENTIALITY
10.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by either You or Us ("Disclosing Party") to the other ("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 both You and Us 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 either You or Us, as applicable. However, Confidential Information 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.
10.2. 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. You agree to keep all log-in identifications and passwords confidential and not to transfer or disclose them to other individuals or third parties. You shall bear the responsibility for breaches of this Section by any of Your employees, contractors or agents irrespective of whether the breach occurs during or after the period of the employment, agency or contractor relationship.
10.3. Protection of Your Data. Without limiting the above, We shall maintain reasonable 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 10.4 (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.
10.4. 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.
11. WARRANTIES AND DISCLAIMERS
11.1. Our Warranties. We warrant that the Services shall perform materially in accordance with the User Guide. For any breach of this warranty, Your exclusive remedy shall be as provided in Section 14.3 (Termination for Cause) and Section 14.5 (Refund or Payment upon Termination) below. We shall not be responsible for any defects or damage caused by or resulting from (a) modification of the Services by anyone other than Us, (b) Your combination, operation, or use of the Services with Your or a third party's applications, software or systems unless the foregoing were furnished by Us, (c) alteration, repairs or use of services provided by anyone other than Us, Our affiliates or its designated service providers, (d) abuse, willful misconduct, or negligence, by anyone other than Us, Our affiliates or its designated service providers, or (e) use of the Services other than in accordance with the terms of this Agreement and/or the User Guide.
11.2. Mutual Warranties. You and We each represent and warrant that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other any Malicious Code (except for Malicious Code previously transmitted by the other).
11.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. MUTUAL INDEMNIFICATION
12.1. 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. We shall have no obligation to indemnify You, and You shall defend, indemnify, and hold Us harmless from and against, any and all demands, liabilities, losses, costs, damages, and expenses, including reasonable attorneys' fees, arising out of any claim or action to the extent that it is based upon: (a) modification of the Services by anyone other than Us, (b) Your combination, operation, or use of the Services with Your or a third party's applications, software or systems unless the foregoing were furnished by Us; or (c) Your use of the Services provided by Us other than in accordance with the terms of this Agreement and/or the User Guides.
12.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party in connection with Your Data or Your use of the Services, including, but not limited to, allegations that Your Data or Your use of the Services are in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates any privacy rights or 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.
12.3. Exclusive Remedy. This Section 12 (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.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL OUR 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. NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR MULTIPLE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES OR SOFTWARE INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM ANY LOSS OF DATA, REVENUE, PROFITS, OR LOSS OF USE OF ANY SERVICES OR SOFTWARE, OR FOR INTERRUPTION OF BUSINESS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COSTS, DAMAGES, FINES, LEVIES, OR OTHER MONETARY JUDGEMENT ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY DATA LOSS. WE ARE NOT RESPONSIBLE FOR DATA THAT MAY BE REMOVED OR STORED ON OUR SYSTEMS. IT IS YOUR RESPONSIBILITY TO REVIEW THE DATA STORED BY US ON A MONTHLY BASIS.
14. TERM AND TERMINATION
14.1. Term of Agreement. This Agreement commences on the date You click the "I Agree" button and continues until all Named User subscriptions granted in accordance with this Agreement have expired or been terminated, unless this Agreement/these Terms are terminated earlier in accordance with Section 14.3. If You elect to use the Services for a trial period and do not purchase a subscription before the end of that Trial Period, this Agreement will terminate at the end of the Trial Period.
14.2. Term of Purchased Named User Subscriptions. Named 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 Named User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either You or We give the other of non-renewal at least 10 days before the end of the relevant subscription term. The 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 10 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
14.3. Termination for Cause. Either You or We may terminate this Agreement for cause upon 10 days written notice to the other of a material breach if such breach remains uncured at the expiration of such period.
14.4. Termination for Bankruptcy. Either You or We may terminate this Agreement if the other becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.5. Payment upon Termination. Upon any termination by You for cause, 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 by Us for cause, 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.
14.6. Return of Your Data. Upon request by You made within 15 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 15-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.
14.7. Surviving Provisions. Section 8 (Fees and Payment for Purchased Services), 9 (Proprietary Rights), 10 (Confidentiality), 11.3 (Disclaimer), 12 (Mutual Indemnification), 13 (Limitation of Liability), 14.5 (Refund or Payment upon Termination), 14.6 (Return of Your Data), 15 (Compliance with Laws) and 16 (General Terms and Provisions) shall survive any termination or expiration of this Agreement.
15. COMPLIANCE WITH LAWS.
15.1. Generally. You shall comply with all laws, legislation, rules, regulations, and governmental requirements applicable with respect to the Services, Software and the performance by You of its obligations hereunder, of any jurisdiction in or from which You directly or indirectly causes the Services or Software to be used or accessed. In the event that this Agreement is required to be registered with any governmental authority, You shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
15.2. Export. You shall not export or re-export, directly or indirectly (including via remote access), any services, software, documentation or other information or materials provided by Us hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export, without first obtaining such license or approval. It shall be Your responsibility to comply with the latest United States export regulations, and You shall defend and indemnify Us from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of any claim that any services, software, documentation or other information or materials provided by Us hereunder were exported or otherwise accessed, shipped or transported in violation of applicable laws and regulations.
16. GENERAL TERMS AND PROVISIONS.
16.1. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any choice or conflict of laws rule or provision that would result in the application of the substantive law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for any action, suit or other proceeding, arising under this Agreement or the transactions contemplated hereby shall be the federal and state courts located in the State of Delaware, and both parties hereby consent to such jurisdiction and venue for such purpose.
16.2. Notices. All notices and other communications hereunder shall be in writing or by fax, and shall be deemed to have been duly given (i) if delivered personally, (ii) if mailed by postage prepaid, certified mail, return receipt requested, (iii) if sent by recognized overnight courier (having package tracking) with next day delivery instructions, (iv) if sent by fax or (v) if emailed, in each case addressed as indicated below or otherwise by You to Us or to such other address as to which such party shall have notified the other in accordance with this Section 15.3. Any such notice shall be effective (a) if delivered personally, when received, (b) if sent by overnight courier, when receipted for, (c) if mailed, three (3) business days after being mailed as described above, (d) if sent by fax, when dispatched, as verified by a receipt issued by sender's fax machine and (e) if sent by email, when dispatched; provided that the sending party bears the burden of proving that the notice was properly addressed and arrived intact at the first server owned or under contract to the intended recipient (i.e., it is the responsibility of the recipient to ensure that properly addressed messages are routed to individual recipients within its own organization).
16.3. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, including without limitation any act of God, natural disaster, lightning, fire, storm, flood, earthquake, explosion, war, threat of war, terrorist act, riot, civil disturbances, acts of vandalism, and acts of any government or agency thereof, then the affected party's performance shall be extended for the period of delay or inability to perform due to such occurrence.
16.4. Independent Contractors. Each party represents that it is acting on its own behalf as an independent contractor and is not acting as an agent for or on behalf of any third party. This Agreement and the relations hereby established by and between the parties do not constitute a partnership, joint venture, franchise, agency or contract of employment. Neither party is granted, nor neither party shall exercise, the right or authority to assume or create any obligation or responsibility on behalf of or in the name of the other party.
16.5. No Third Party Beneficiaries. This Agreement is for the mutual and exclusive benefit of the parties hereto and shall not be deemed to be for the direct or indirect benefit of any third parties, none of which are intended to be beneficiaries of this Agreement.
16.6. No Waiver. No provision of or right under this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party. No waiver by either party of any breach of this Agreement by the other party shall be effective as to any other breach, whether of the same or any other term or condition and whether occurring before or after the date of such waiver.
16.7. Entire Agreement; Amendments. The terms and provisions contained in this Agreement (including all attachments hereto) constitute the entire understanding of the parties with respect to the transactions and matters contemplated hereby and supersede all previous communications, representations, agreements and understandings, whether written or oral, relating to the subject matter hereof. No representations, inducements, promises or agreements, whether oral or otherwise, between the parties not contained in this Agreement or incorporated by reference in this Agreement shall be of any force or effect. No agreement or understanding extending this Agreement or varying its terms (including any inconsistent terms in any purchase order, acknowledgment or similar form) shall be binding upon either party unless it is in a writing specifically referring to this Agreement and signed by a duly authorized representative of the applicable party.
16.8. Costs & Attorneys' Fees. If either party commences any action, suit or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action, suit or proceeding shall be entitled to recover from the other party the actual costs, expenses and attorneys' fees (including all related costs and expenses) incurred by such prevailing party in connection with such action, suit or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
16.9. Assignment. This Agreement and the rights and obligations hereunder, may not be assigned or otherwise transferred or sublicensed in whole or in part, by You without the prior written consent of Us and any attempt to so assign shall be void. This Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
16.10. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
16.11. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
16.12. Further Assurances. Each party covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, it will execute and deliver any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate the purposes of this Agreement.
16.13. Contract Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Titles and headings of the sections and subsections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement and shall not limit or affect the meaning or construction of the terms and conditions hereof. Words such as herein, hereinafter, hereof and hereunder refer to this Agreement as a whole and not merely to a section or paragraph in which such words appear, unless the context otherwise requires. The singular will include the plural, the plural will include the singular, and each masculine, feminine and neuter reference will include and refer also to the others, unless the context otherwise requires.
16.14. Execution. The person agreeing to this Agreement for certifies that (s)he has the authority to execute this agreement on behalf of You; and that this transaction was duly authorized by all appropriate actions on Your behalf; that the consummation of the transactions contemplated hereby will not conflict with Your corporate charter and by-laws or other governing documents, and will not cause a breach of any contractual provision binding upon You. By execution hereof, the signer certifies that (s)he has read this entire Agreement, and that We or Our representatives have made no agreements or representations other than those contained herein.