SkyDox Platform - Terms of Service
SkyDox Ltd
December 2011
All rights reserved.
MASTER SERVICE & SUBSCRIPTION AGREEMENT
YOUR 60-DAY FREE TRIAL OF SKYDOX SERVICES IS GOVERNED BY THIS MASTER SERVICE & SUBSCRIPTION AGREEMENT (THE
AGREEMENT).
IF YOU REGISTER FOR, DOWNLOAD OR PURCHASE OUR ONLINE SERVICES MOBILE SERVICES OR DESKTOP COMPONENTS
(COLLECTIVELY, THE "SERVICES"), YOU UNDERSTAND THAT THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND
ONGOING USE OF THOSE SERVICES.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, OR TO MONITOR THEIR FUNCTIONALITY,
PERFORMANCE, AVAILABILITY OR ANY OTHER COMPETITIVE OR BENCHMARKING-RELATED PURPOSES.
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 AND CONDITIONS CONTAINED IN THE AGREEMENT
GOVERNING YOUR USE OF SKYDOX SERVICES. 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.
1. Definitions
"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. "Agreement" means these online terms of use together with any Order Forms, whether written
or submitted online. "Content" means the audio and visual information, documents, software, products and services contained
or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided
or submitted by you to Us in the course of using the Service; "Effective Date" means the earlier of either the date this
Agreement is accepted by selecting the "I Accept" option or the date you begin using the Services. "Effective Date of
Termination" means the date upon which this Agreement ceases to be in effect and binding on the parties. "Intellectual
Property Rights" means copyrights, trademarks, service marks, trade names, design rights, domain name rights, mask work
rights, know-how and other trade secret rights, patents, patent applications, unpatented inventions, and all other intellectual
property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. "Malicious Code" means
harmful files, code, scripts, agents or programs including but not limited to viruses, worms, time bombs, and Trojan horses.
"Order Form" means the ordering documents trials, subscriptions or purchases hereunder, including addenda thereto, that are
entered into between You and Us from time to time indicating the number of licenses and other services contracted for, the
applicable fees, the billing period, and other charges and conditions. Order Forms shall be deemed incorporated herein by
reference. For avoidance of doubt, in instances of conflict between the terms of this Agreement and the terms of any such Order
Form, the terms of this Agreement shall prevail. "Purchased Services" means those Services that You or Your Affiliates have
purchased for monetary consideration, as distinguished from those provided under our 15-day free trial programme. "Services"
means the desktop application add-ins, the online Web-based applications and platform provided at and any ancillary online or
offline products and services that are provided by Us to You under Our 60-day free trial programme or on an Order Form. For
avoidance of doubt, Services does not include Third Party Applications. "Intellectual Property" means all of Our proprietary
technology including but not limited to software, products, processes, algorithms, user interfaces, know-how, techniques,
designs and other tangible or intangible technical material or information made available to you by whatever means. "ThirdParty Applications" means those applications, whether online Web-based applications or offline software products that are
provided by third parties, are identified as third-party applications and are integrated or operate in conjunction with the
Services. "User Guide" means the online instructions for using the Services, as updated from time to time and accessible
via http://support.skydox.com/categories/7000-skydox-user-guide. You acknowledge that You have had the opportunity to
review the User Guide during the 60-day free trial as described in this Agreement. "Users" means your employees,
representatives, consultants, contractors or agents who are authorized by You to use the Services, for whom subscriptions to a
Service have been purchased or other agreed consideration has been given, and who have been supplied user identifications
and passwords by You or Us. "We," "Us" or "Our" means SkyDox the company, the operator of the skydox.com website and the
SkyDox platform and Services, and its agents, successors and assigns. "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 Services.
2. 60-Day Free Trial
We will make the Services available to You on a trial basis, free of charge, until the earlier of (a) sixty days after Your acceptance
of this Agreement or (b) the start date of Services ordered and purchased by You. Additional trial terms and conditions may be
included within the trial registration process and are incorporated into this Agreement by reference so are legally binding. It is
Your responsibility to review the User Guide during the trial period so that You become familiar with the features and functions
of the Services before You make Your purchase.
NOTWITHSTANDING THE WARRANTIES AND DISCLAIMERS IN SECTION 8, DURING THE 60-DAY FREE TRIAL THE SERVICES ARE
PROVIDED "AS-IS" WITHOUT ANY WARRANTY. ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR 60-DAY FREE TRIAL
WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES OR EXPORT SUCH DATA BEFORE
THE END OF THE 60-DAY TRIAL PERIOD.
3. Purchased Services
3.1 User Subscriptions. Unless otherwise specified in the applicable Order Form, (a) Services are purchased on a per User
subscription basis and may not be accessed by more than the number of Users specified in the Order Form; (b) User licenses
cannot be shared or used by more than one individual User; (c) additional User subscriptions may be added during the
subscription term at the same price as that for the pre-existing subscriptions, prorated for the remainder of the subscription
term in effect at the time the additional User subscriptions are added; and (d) 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.
3.2 Provision of Purchased Services. Subject to this Agreement and the relevant Order Forms We shall 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.
4. Use of the Services
4.1 Your registration for, or use of, the Services shall be deemed to be further or exclusive indication of your acceptance of this
Agreement, including but not limited to Our privacy and security policies.
4.2 We shall: (a) provide You with use of the Purchased Services, including a desktop application for specific versions of
Windows, Apple and Linux operating systems, plug-in components for Microsoft Word, Excel and PowerPoint 2007 and 2010, a
browser interface, mobile browser interfaces, and data encryption, transmission, access and storage; and (b) provide You with
basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (c) use
commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) 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 weekend hours), or (ii) 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 labour
problems (other than those involving Our employees), or Internet service provider failures or delays.
4.3 You shall: (a) be responsible for Users compliance with this Agreement, (b) be solely responsible for the accuracy, quality,
integrity and legality of Your Data and of the means by which You acquired Your Data, (c) 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 of any
password or account or any other known or suspected breach of security, (d) use the Services only in accordance with the User
Guide and abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of
the Service, including those related to data privacy, international communications and the transmission of technical or personal
data, and (e) be solely responsible for obtaining the legal rights to use any Microsoft Office software or other software not
covered by this Agreement but used in connection with the Service.
4.4 You shall not: (a) make the Services available for time sharing, application service provider or service bureau use; and shall
not sell, resell, rent, lease, license, sub-license, transfer, assign, distribute, or in any way make the Services available to anyone
other than Users, (b) attempt to gain unauthorized access to the Services or their related systems or networks, (c) modify,
adapt, translate or otherwise modify the Services or create derivative works based on the Services, (d) copy, frame or mirror any
part or content of the Services, (e)reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code
of the Software, except to the extent applicable laws specifically prohibit such restriction, (f) use, post, transmit or introduce any
device, software or routine which interferes or attempts to interfere with the operation, performance or integrity of the
Services, (g) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or
graphics of the Services, or (h) use the Services to store or transmit Malicious Code, or to transmit infringing, libellous, or
otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights.
4.5 Usage Limitations. (a) The license granted in this Agreement and your right of use of the Services will terminate immediately
if You fail to comply with the terms of this Agreement. (c) The Services are subject to other limitations, including but not
exclusively, limits on disk storage space and limits on the number of people who may register from your email domain to access
the services as free guest users. Any such limitations are specified in the Order or the User Guide.
5. Paying for Purchased Services
5.1 User Fees. User subscription fees are calculated on the basis of monthly or annual periods that begin on the subscription
start date, and each monthly or annual anniversary thereof. Fees for monthly User subscriptions added in the middle of a
monthly period will be charged for that full monthly period. Fees for annual User subscriptions added in the middle of a
monthly period will be charged a pro-rated amount from the beginning of that monthly period to the end of the current
subscription term. You agree to pay all fees specified in all Order Forms relating to the Services. Unless otherwise specified in an
Order Form, fees are quoted and payable in United States Dollars and are based on services purchased rather than actual usage.
Fees paid are non-refundable and payment obligations are non-cancellable, and the number of User subscriptions purchased
cannot be decreased during the relevant subscription term stated on the Order Form.
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 specified in an Order Form. If You provide credit card information to Us, You authorise 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 11.3 (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 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 order to ensure timely payment for the Services.
5.3 Past-due Amounts. If any amounts owed by You under this or any other Order of Agreement with Us are not received on or
before the due date, then at Our discretion, late interest fees may be charged 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.
Additionally, We may condition future subscription renewals and Order Forms on payment terms shorter than 30 days.
5.4 Suspension of Service and Acceleration. If any amounts owed by You under this or any other Order of Agreement with Us are
30 or more days overdue in the case of an invoice or purchase order, 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 they become immediately due and payable, and suspend Our services to
You until such amounts are paid in full.
5.5 Disputed Payment. If amounts owed by You are under reasonable and good-faith dispute and You are cooperating diligently
to resolve the dispute, Sections 5.3 and 6.4 shall not apply.
5.6 Taxes. Unless otherwise stated, Our quoted fees do not include taxes, levies or duties, including but not limited to valueadded, sales, use or withholding taxes as assessable by local, state, provincial, federal or foreign jurisdiction (collectively, "
Taxes"). You are responsible for paying any and all Taxes associated with Your purchases of our Services. If We have a 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.
6. Intellectual Property Rights
6.1 Reserved Rights. We reserve all rights, title and interest in and to the Services that are not expressly granted within this
Agreement, including without limitation all related intellectual property rights in the Services and any derivative works or
enhancements thereof. All rights in and to the Services not expressly granted to You in this Agreement are hereby expressly
reserved and retained by Us.
6.2 Use of Feedback. We shall have a worldwide, transferable, sub-licenseable, irrevocable, perpetual, royalty-free license to use
for the purpose of enhancing the Services any suggestions, enhancement requests, recommendations or other feedback
provided by You.
6.3 Ownership of Your Data. As between You and Us, You are the exclusive owner of Your Data, and You retain all rights, title
and interest in and to Your Data.
6.4 Ownership of Our Marks. We are the exclusive owner of the trademarks, service marks, trade or business names, logos,
domain names, other distinctive brand features and any other copyrighted material and proprietary rights associated with the
Services. You are not permitted without Our express written consent to (a) register, attempt to register or assist any third party
to register or attempt to register any trade mark, service mark, trade or business name, logo, domain name, other distinctive
brand feature or any other copyrighted material or proprietary right associated with the Services or with Us, or to (b) remove,
obscure or alter any notice of copyright, trade mark or other proprietary right notice appearing in or on any item included with
the Service.
7. Privacy, Security and Confidentiality
7.1 Privacy. Our privacy and security policies, which may be updated from time to time, are available or review at
www.skydox.com/privacy. You agree to receive announcements from us regarding the operation of the Services as well as
marketing and other non-critical Service-related communications from time to time. If you register as a Guest user of the
Services, purchase a premium edition of the Services, or register as a user under a paid company subscription, you consent to
our disclosure of the fact that your company is a registered user or paying customer and the Service that you are using. You may
opt-out of receiving promotional emails by following the opt-out instructions provided in those emails. You may also opt-out of
receiving promotional emails and other promotional communications from us at any time by emailing info@skydox.com with
your request. Opt-out requests will not apply to transactional service messages, such as security alerts and notices about your
current account and services.
7.2 Website Analytics. The SkyDox website uses Google Analytics and Trovus Analytics.
7.2(a) Google Analytics. The website analytics services provided by Google, Inc. ("Google") uses "cookies," which are text files
placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about
your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States.
Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for
website operators and providing other services relating to website activity and Internet usage. Google may also transfer this
information to third parties where required to do so by law, or where such third parties process the information on Google's
behalf. Google will not associate your IP address with any other data held by Google. You may refuse the use of cookies by
selecting the appropriate settings on your browser, however please note that if you do this you may not be able to use the full
functionality of this website. By using this website, you consent to the processing of data about you by Google in the manner
and for the purposes set out above.
7.2(b) Trovus Analytics. Trovus Analytics website service is provided by White Label Intelligence Limited. ("WLI"). Trovus
Analytics uses "cookies," which are text files placed on your computer, to help the website analyze how users use the site. The
information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored
by Trovus on servers in the United Kingdom. SkyDox will use this information for the purpose of evaluating your use of the
website, compiling reports on website activity for website operators and providing other services relating to website activity and
Internet usage. SkyDox may also transfer this information to third parties where required to do so by law, or where such third
parties process the information on SkyDox’s behalf. SkyDox will not associate your IP address with any other data held by
SkyDox. 7,2(c) You may refuse the use of cookies by selecting the appropriate settings on your browser, however please note
that if you do this you may not be able to use the full functionality of this website. By using this website, you consent to the
processing of data about you by SkyDox in the manner and for the purposes set out above.
7.3 Security of Your Data. Without limiting the following, We shall maintain appropriate physical, technical and administrative
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 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 Responsibility for Your Data. We do not own any data, information or material that You submit for processing by, storage in
or transmission through the Services ("Customer Data"). As between You and Us, You shall have sole responsibility for the
accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all
Customer Data, and We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to
store any Customer Data.
7.5 Confidential Information Is. For the purpose of this Agreement, "Confidential Information" shall include all information,
(including all oral and visual information, and all information recorded in writing, or electronically, or in any other medium or by
any other method or process) and whether of a commercial, financial, marketing, technical, non-technical or any other nature,
which is disclosed to, or obtained by, one Party from the other, or by, or from, a third person acting on that Party's behalf, and
shall include, without limitation, the terms and conditions of this Agreement and all Order Forms, any plans, proposals, design
specifications, models, sketches, drawings, photographs, processes, trade secrets, know-how, information concerning research,
experimental work, development, design details and specifications, engineering, procurement requirements, purchasing,
manufacturing, business forecasts, sales, merchandising and marketing plans, customer lists, personnel information and all
other aspects of its business or affairs, including, without limitation, its assets, liabilities, prices, profitability, plans, policies and
financial position or, in any event, is such that, by its nature, the information would be accepted by a reasonable person as
confidential.
7.6 Confidential Information Is Not. For the purpose of this Agreement, "Confidential Information" does NOT include
information or material which was in the public domain at the time of receipt or disclosure or subsequently becomes so, other
than as a result of any breach of this Agreement; is not identified in writing as being proprietary or confidential or, in the
absence of such markings, is not, by its nature, such that would be considered proprietary or confidential by a reasonable
person; can be demonstrated to the reasonable satisfaction of the disclosing party to have been developed by the Party in
possession independently of the Confidential Information disclosed to it by the other Party; is received by the Party in
possession from a third party without similar obligations of confidence and without breach of this Agreement; is approved for
release by written authorisation of the disclosing Party; consists solely of generalised ideas, concepts, know-how or techniques
of the industry of the Party in possession.
7.7 Specific Obligations of the Parties. Except as otherwise permitted in writing by a Disclosing Party, each Party agrees (a) to
maintain such Confidential Information in confidence, and in a secure manner, and to use the same only for the Discussions and
for no other purpose and in particular, but without limitation, not to make any commercial use thereof or use the same for the
benefit of itself or of any third party other than pursuant to this Agreement, or such further agreement between the Parties, (b)
to ensure that the Confidential Information is disclosed only to those of its employees, agents, advisors and sub-contractors who
are, and, can be shown to be, connected with the Discussions and to ensure that each of those persons is aware of the Party's
obligations of confidence under this Agreement and is subject to obligations of non-use and non-disclosure no less strict than
those imposed herein, (c) not to copy, reproduce or reduce to writing any such Confidential Information save as may be
reasonably required for the Discussions and to ensure, in respect of any such copies, reproductions or reductions to writing, that
the same shall be duly identified as confidential and proprietary to the disclosing party, (d) upon request by the disclosing Party,
to return to the disclosing party within 30 days, or at the option of the disclosing Party, to destroy, all items of Confidential
Information, or copies, reproductions or reductions in writing thereof, (including any such Confidential Information held on the
Party's computer systems), and to certify in writing compliance thereof under this provision, within 14 days of such request, (e)
to maintain all confidential or proprietary markings placed upon or contained within the Confidential Information of the
disclosing Party and not to obscure, remove, destroy or render illegible any such markings, (f) to notify the other party
immediately upon it becoming aware of, or suspecting that there may have been a breach of confidence in respect of the
Confidential Information or of any circumstances, events or happenings which may suggest that any person may have
unauthorised possession, knowledge or use of the Confidential Information.
7.7 Compelled Disclosure. Nothing in this Agreement shall prohibit a Party disclosing Confidential Information of the other Party
that may be required by court order or by any governmental or other regulatory authority, PROVIDED THAT, wherever possible,
in advance, but in any event, as soon as reasonably practicable: (a) the Party provides the other Party with details of the nature
and contents of such disclosure and evidence in writing that the disclosure is necessary, (b) the other Party is given the
opportunity to discuss and agree any possible limitations or restrictions on disclosure in advance; and (c) the disclosing Party
uses reasonable endeavours to obtain undertakings of confidentiality in respect of the Confidential Information from the body
to whom disclosure is to be made.
8. Warranties and Disclaimers
8.1 Our Warranties to You. We warrant that (a) will provide the Service in a manner consistent with general industry standards
reasonably applicable to the provision thereof, (b) that under normal use and circumstances the Services shall perform
substantially in accordance with the User Guide, and (c) that the functionality of the Services will not be materially decreased
during a subscription term. For any breach of warranties in this Section 8.1, Your exclusive remedy shall be as provided in
Section 11.4 (Termination for Cause) and Section 11.5 (Refund or Payment upon Termination) below.
8.2 Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b)
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. THE SERVICES AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. NO
CONDITIONS, WARRANTIES OR OTHER TERMS INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR
PURPOSE OR CONFORMITY WITH DESCRIPTION APPLY TO THE SERVICES EXCEPT TO THE EXTENT THEY ARE EXPRESSLY SET OUT
IN THIS AGREEMENT. Without limiting the generality of the foregoing, We do not represent or warrant that: (a) the use of the
Services will meet Your requirements or expectations or be uninterrupted, secure or error-free, (b) that any stored data will be
accurate or reliable, (c) that defects will be corrected, (d) that the Services will operate in combination with any hardware, or
other software, system, service or data, (e) that the Services or the servers that make the Services available are free of viruses or
other harmful components, or (f) that provision of the Services will be timely or otherwise reliable.
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 Services as licensed 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
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 defence and settlement of the Claim (provided that We may not settle any Claim unless the
settlement unconditionally releases You of all liability); (c) provide to Us all reasonable assistance, at Our expense, and (d) have
not compromised or settled such claim.
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, Your combination of the Services with any of your products, services, hardware or business processes, or Your use of the
Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party, has caused
harm to a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for
reasonable attorney 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 defence and settlement of the Claim (provided that You may not settle any
Claim unless the settlement unconditionally release Us of all liability); (c) provide to You all reasonable assistance, at Your
expense, and (d) have not compromised or settled such claim.
9.3 Exclusive Remedy. This Section 9 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 6 (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 DATA, 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 Free Trial. If You elect to use the Services for a 60-day free trial period and do not purchase a subscription before
the end of that period, this Agreement will terminate at the end of the 60-day free trial period. Notifications provided during the
trial period through the Service indicating the remaining number of days remaining in the free trial shall constitute notice of
termination. Additionally, We may terminate a free account at any time at Our sole discretion.
11.3 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. All User subscriptions shall automatically renew
for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless the Service has been
discontinued or 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.
11.4 Termination for Cause. Either party may terminate this Agreement (a) for cause upon 30 days written notice to the other
party of an uncured material breach, or (b) 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. We may terminate this
Agreement for cause immediately upon written notice in response to any actual or proposed change in control of You that
results or would result in one of Our direct competitors directly or indirectly controlling 50% or more of You. If We terminate
this Agreement for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to
maintain or forward your password, account or any Customer Data.
11.5 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.
11.6 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 its 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. Not withstanding the above
obligations, we reserve the right to withhold, remove and/or discard Customer Data without notice for any material breach of
this agreement including failure to pay outstanding fees more than 90 days past due.
11.7 Surviving Provisions. Sections 5 (Payment for Purchased Services), 6 (Intellectual Property Rights), 7 (Privacy, Security and
Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.5 (Refund or Payment upon
Termination), 11.6 (Return of Your Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive
any termination or expiration of this Agreement.
12. Notices, Governing Law and Jurisdiction
12.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder
shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second 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.
12.2 Agreement to Governing Law and Jurisdiction. Each party agrees that the validity, interpretation and performance of this
Agreement shall be governed by the laws of England. Any dispute arising under, or in connection with this Agreement, shall be
subject to the exclusive jurisdiction of the English courts to which the parties hereby submit. A person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this
does not affect any right or remedy of a third party which exists or is available apart from that Act. You agree that the Website
shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in
jurisdictions other than England.
12.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way
arising out of or related to this Agreement.
13. General Provisions
13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United Kingdom, the United States
and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents
that it is not named on any U.K. or U.S. government list of persons or entities prohibited from receiving exports.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create an agency,
partnership, franchise, joint venture, 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 unless expressly acknowledged and agreed to by both parties in writing. 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 reflect the intentions 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. Except as in Section 13.9, 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.
13.9 Modification to Terms. Notwithstanding section 13.8, We reserve the right to modify the terms and conditions of this
Agreement or the policies relating to the Services at any time, effective at the anniversary of your renewal term following
posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement.
Renewal and continued use of the Service after any such changes shall constitute your consent to such changes.