Last Updated: 10/15/2021
THIS AGREEMENT GOVERNS YOUR USE AND PURCHASE OF OUR SERVICES, T4|YIP PLATFORM, AND WEBSITE.
BY PROCEEDING, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY PAYING A FEE THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CLIENT” SHALL REFER TO SUCH ENTITY. 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, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
You may not access our Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 15, 2021. It is effective between Client and Us as of the date of Client accepting this Agreement.
TABLE OF CONTENTS
- Free and Beta Trials
- Our Responsibilities
- Use of the Services and Content
- External Providers
- Fees and Payment for Purchased Services
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Limitation of Liability
- Term and Termination
- Governing Law and Jurisdiction
- General Provisions
“Beta Services” means Services that may be made available to Client to try at its option at a reduced fee or at no charge which is clearly designated as beta, pilot, limited release, first cohort, evaluation, or by a similar description.
“Client”, “You” or “Your” means the person, company or other legal entity for which you are accepting this Agreement or which has signed Order Forms, with such terms being used interchangeably.
“Content” means the data, information, presentations, templates, instructional information, and other materials (whether presented via audio, video, or other means) made available to Client or Users through the Services, Beta Services or pursuant to an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
“External Application” means a Web-based, mobile, offline or other software application functionality that is provided by a third party or You and interoperates with a Service, including, for example, the T4|YIP Platform, Outsystems or ActiveCampaign.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. By entering into an Order Form hereunder, the Client agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You purchase under an Order Form, as distinguished from those provided as Beta Services.
“Services” means the products, services, and Content that are offered or provided by Us including the T4|YIP Platform, Our Content, and any related professional, training, program, or other services provided in connection with Our offerings.
“Third Party Content” means Content obtained by Us from publicly available sources or third party content providers and made available to Client or users through the Services, Beta Services or pursuant to an Order Form including, without limitation, External Applications.
“User” means an individual who is authorized by Client to use a Service, for whom a Service has been provisioned, and to whom You (or, when applicable, Us at Your request) have supplied user access (for Services utilizing authentication). Users may include, for example, Your employees, team members, coaches, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Organizing for Innovation LLC.
“T4|YIP Platform” means Our hosted software services platform accessed as part of the Services including, without limitation, any software, software applications, user documentation, templates, presentations, materials and related Content provided over the platform as part of the Services.
“Your Data” means electronic data and information submitted by or for Client to the Services.
- FREE AND BETA TRIALS
From time to time, We may make Services available to Client and Users at no or a reduced charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use and may be subject to additional terms, such as minimum progress requirements. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related External Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Trial period will expire at the end of the trial period for which Client registered to use the applicable Service(s). After the Trial period, we may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Additional trial terms and conditions may appear on the trial registration. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CLIENT OR USERS ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR THE CLIENT OR USER WILL BE PERMANENTLY LOST UNLESS CLIENT CONTINUES TO PURCHASE THE SAME SERVICES, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE AGREEMENT DATE.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL OR BETA SERVICES THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, TYPE OR NATURE. IN NO EVENT WILL OUR LIABILITY WITH RESPECT TO OR ARISING OUT OF THE PROVISION OF BETA SERVICES (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF (I) THE AMOUNT OF FEES PAID TO US FOR THE BETA SERVICES, OR (II) $100.00 IN THE AGGREGATE.
- OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services, and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable standard support for the Services to You at no additional charge, and/or upgraded support if purchased during regular business hours Monday-Friday 8 am – 6 pm ET, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, External Application, or denial of service attack.
3.2. Protection of Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data. These safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. Where Your use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area (EEA), except in respect of any usage during a Free or Beta Trial. For the purposes of the Standard Contractual Clauses in Schedule 3 to the DPA, You are the data exporter, and Your acceptance of this Agreement shall be treated as Your signature of the Standard Contractual Clauses and appendices.
3.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
- USE OF SERVICES AND CONTENT
4.1 Subscriptions. Some Services may be purchased as subscriptions as specified in the Order Form.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities and duration specified in Order Forms. Unless otherwise specified, (a) a User’s password may not be shared with any other individual or organization, and (b) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for each Users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any External Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or External Application 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 a Service or External Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement or an Order Form, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your or Users own internal business purposes, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a external product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however, We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 Acceptable Use. Your use of the Service and External Applications must not violate any applicable laws, including copyright or trademark laws, export control or sanctions laws, or other laws in your jurisdiction. You are responsible for making sure that your use of the Service and External Applications is in compliance with laws and any applicable regulations. In connection with your use of the Service, its Contents, and any External Applications and in addition to the usage restrictions stated above, you will not:
- post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
- remove any copyright, trademark or other proprietary rights notices contained in the Content or with respect to the Services;
- post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services.
Under no circumstances will You or any Users upload, post, host, execute, or transmit any Content to the Service that:
- is unlawful or promotes unlawful activities;
- is or contains sexually obscene content;
- is libelous, defamatory, or fraudulent;
- is discriminatory or abusive toward any individual or group;
- gratuitously depicts or glorifies violence, including violent images; or
- is or contains false, inaccurate, or intentionally deceptive information that is likely to adversely affect the public interest (including health, safety, election integrity, and civic participation).
While using the Service, under no circumstances will You or Your Users:
- harass, abuse, threaten, or incite violence towards any individual or group, including our employees, officers, and agents, or other users;
- use our servers for any form of excessive automated bulk activity (for example, spamming or cryptocurrency mining), to place undue burden on our servers through automated means, or to relay any form of unsolicited advertising or solicitation through our servers, such as get-rich-quick schemes;
- use our servers to disrupt or to attempt to disrupt, or to gain or to attempt to gain unauthorized access to, any service, device, data, account or network;
- impersonate any person or entity, including any of our employees or representatives, including through false association with any person or entity, or by fraudulently misrepresenting your identity or site’s purpose; or
- violate the privacy of any third party, such as by posting another person’s personal information without consent.
4.6 Removal of Content and External Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that an External Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event, You will promptly disable such External Application or modify the External Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or External Application until the potential violation is resolved.
- EXTERNAL PROVIDERS
5.1. Third Party Content. We or third parties may make available, third-party products or services, including, for example, Outsystems. Any acquisition by You of such products or services, and any exchange of data between You, Users, and any External provider, product or service is solely between You and the applicable External provider. We do not warrant or support Third Party Content or other External Applications, products or services, whether or not they are designated by Us as “certified” or otherwise.
5.2. External Applications and Your Data. If You use an External Application with a Service, You grant Us permission to allow the External Application and its provider to access Your Data as required for the interoperation of that External Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such External Application or its provider.
5.3. Integration with External Applications. The Services may contain features designed to interoperate with External Applications. To use such features, You may be required to obtain access to such External Applications from their providers, and may be required to grant Us access to Your account(s) on such External Applications. We cannot guarantee the continued availability of such Service features and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of an External Application ceases to make the External Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
- FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant participation term.
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 Purchased Services listed in the Order Form for the initial term or cost, and in the case of subscription-based services, any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date and before any program starts, whichever is sooner. 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. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those 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, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
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 (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. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Pricing; Taxes. Unless stated otherwise, pricing shall be in US dollars. Client is responsible for all duties, taxes, levies and fees arising from its purchase of Services and all related deliverables. Client shall pay the agreed prices with no setoffs or deductions.
6.7. Future Functionality. Client agrees that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
- PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. You understand and agree that We own the Services and Content including, without limitation, the T4|YIP Platform and all software used in providing the Services. You agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to Client Or Users hereunder other than as expressly set forth herein.
7.2. Access to and Use of Services and Content. Client and Users and have the right to access and use applicable Services and Content subject to the terms of applicable Order Forms and this Agreement.
7.3. License to Host Your Data and Applications. You grant Us and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data for use by Client and Users with the Services, and as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data.
7.4. License to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free right and license to use, display, disclose, publish, perform, reproduce, modify, license, transfer, distribute, and otherwise exploit such any suggestion, comments, ideas, improvements, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the Services in any manner, including incorporation of such feedback in updated versions of our Services or other product offerings or materials not licensed hereunder. Neither Client nor any User will be entitled to any compensation, attribution, or credit for, nor gain any right, title, or interest in or to, any materials as a result of such feedback.
7.5 Refund. For Services offered that state the possibility of a refund, one shall be given should Client meet all criteria of such a refund, including the stated time limits. A refund consists of the return of all paid funds for any single Service purchased. By requesting a refund, You are relinquishing all data and content claimed at the time of purchase.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your and Users’ Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, training content, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its and its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party, legal counsel and accountants without the other party’s prior written consent. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or External Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3 Use of Your Data, Notwithstanding anything to the contrary, We shall have the right collect and analyze Client’s and Users’ data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client’s and Users’ Data and data derived therefrom), and We will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Organizing for Innovation offerings, and (ii) disclose such data solely in aggregate or another de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that during an applicable participation or subscription term the Services will perform materially in accordance with the applicable documentation. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, ALL CONTENT, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE EXPRESSLY DISCLAIM ANY AND ALL OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CLIENT ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE. WE ALSO DISCLAIM ALL EQUITABLE INDEMNITIES AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR ANY THIRD PARTY CONTENT OR EXTERNAL APPLICATIONS.
10.1. Client Indemnification. Client and User agree to indemnify, defend, and hold harmless Us, Our affiliates, and Our and their respective employees, officers, directors, agents, advisors, and each provider of External Applications from any and all loss, damage, suit, action, claim, proceeding, cost, liability and expense arising from or related to Client or Users’s data, use of the Services, or Client or User’s violation of this Agreement. In addition, Client and User are exclusively responsible for their actions and Client and Users’ Data related to Services.
10.2. Our Indemnification. We shall defend Client from a third-party claim brought against Client asserting that the Service(s) infringe a United States patent, copyright or trade secret right (“Claim”), and We shall pay amounts payable for any settlement made by us, Client’s reasonable and verifiable costs and expenses, and any third-party damages finally awarded against Client; provided that: (a) Client promptly notifies Us in writing, of the Claim; (b) We are given sole control of the defense and settlement of the Claim; (c) Client reasonably cooperates in providing all information and assistance; and (d) Client reasonably cooperates with any efforts that we may undertake to replace or modify Service(s) to avoid infringement. If Your use of the Service(s) is enjoined by reason of such Claim or We determine in Our sole judgment that an injunction is likely, then absent any replacement or modification provided by Us to avoid infringement, we may at Our sole election: (a) obtain the rights necessary to permit continued use of such Service(s); or (b) terminate the license, and allow Client to return such Service(s) and refund the amount paid by Client for such Service(s), less depreciation.
10.3. Limitations. Notwithstanding the above, We are not obligated to Client or any third party under this Section 10 to the extent that the Claim is based upon: (a) a modification made other than by Us; (b) our compliance with designs, instructions or specifications provided by Client, its Users or it agents; (c) a combination of a Service with other equipment, materials or processes; (d) use of our Services not in accordance with the applicable documentation; or (e) use of the Service in violation of this Agreement. Client shall, in a commensurate manner, defend Us for any claim based upon any circumstances described by this Section 10.3, and shall pay amounts payable for any settlement, our reasonable and verifiable costs and expenses, and any third-party damages finally awarded against us. This Section 10 states Our sole obligation and Client’s exclusive remedies with respect to any third-party claim based upon intellectual property rights.
- LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECIAL DAMAGES OR LIABILITIES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE, COST OF COVER, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITIES OR LOSS OF DATA, UNDER ANY THEORY OF LIABILITY AND EVEN IF WE ARE ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OR LIABILITIES OR IF A REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL OUR LIABILITY EXCEED THE NET PURCHASE PRICE OR LICENSE FEE PAID BY CLIENT FOR THE SERVICES OR DELIVERABLE CAUSING THE DAMAGE, LOSS OR LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ANY CLAIM OR DISPUTE AROSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date Client first accepts it and continues until all content or subscriptions hereunder have expired or have been terminated. Upon termination of this Agreement, all Services covered by or provided under this Agreement shall immediately terminate, and Client shall cease all use of the Services.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term may increase by up to 7% above the applicable pricing in the prior term, unless We provide Client notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal.
12.3. Termination. 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. If this Agreement is terminated by Client in accordance with Section 12.3 (Termination), We will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, Client will pay any unpaid fees covering the remainder of the term of all Order Forms. Except in the case of a termination by Client in accordance with Section 12.3 (Termination), in no event will Client be entitled to any refund or credit for any prepaid fees. In no event will termination relieve Client of its obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Suspension. We retain the right to immediately suspend the provision of any Services in the event (i) we determine Your or any User’s use thereof is in violation of the terms of this Agreement, in violation of any applicable law, rule or regulation, or otherwise poses a safety or security risk to Us or any third party including, without limitation, other users of the Services, or (ii) You have failed to pay any fees or charges when due and have not corrected such failure within seven days of our providing written notice of non-payment.
12.6 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and External Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
- GOVERNING LAW AND JURISDICTION
13.1. General. The laws of the Commonwealth of Virginia govern this Agreement (without giving effect to its conflicts of law principles). Both parties consent to the personal and subject matter jurisdiction of the state and federal courts in Fairfax County, Virginia, United States of America.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing or emailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Services system administrator designated by Client.
- GENERAL PROVISIONS
14.2. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit Users to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation.
14.3. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of 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 Our Legal Department at firstname.lastname@example.org.
14.4 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein (including Section 14.5 below), no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) this Agreement.
14.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, change in control transaction, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions (if existent) for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.7. 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.
14.8. Force Majeure. We will not be liable by reason of any failure or delay in the performance of our obligations on account of events beyond our reasonable control, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action
14.9. Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
14.10. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
14.11. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.