Mindflash Technologies Inc. Master Subscription Agreement
DATED: January 20, 2017
This Agreement governs your acquisition and use of our Services.
If You register for a Free Trial for Our Services, this Agreement will also govern that Free Trial.
By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an Order Form that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.
You may not access the Services if You are Our direct competitor (as determined in our discretion), 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 is effective between You and Us as of the date of You accepting this Agreement (including by executing an Order Form) and/or by You first using the Service.
Table of Contents
3rd Party Providers
Propriety Rights and Licenses
Representations, Warranties, Exclusive Remedies and Disclaimers
Limitation of Liability
Fees and Payment for Purchased Services
Term and Termination
Governing Law and Jurisdiction
"Affiliate" means, with respect to each party to this Agreement, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such party.
"Control" for purposes of this definition, means, with respect to each party to this Agreement, direct or indirect ownership or control of more than 50% of the voting interests of such party.
“Agreement” means this Master Subscription Agreement.
“Services” means the products and services that are ordered by You under a Free Trial, an Order Form, or through Our Online Order Process, and made available online by Us to You.
"Purchased Services" means Services that You or one of Your Affiliates purchase under an Order Form, or Our online Order Process, as distinguished from those Services provided pursuant to a Free Trial.
“Beta Services” means Our services that are not generally available to customers.
“Your Data” means all account information for Users that you submit or collect via the Service, such as log-ins and passwords, and course completions and scores.
“Your Materials” means all materials or content that you provide or post, upload, or submit for public display or display to certain specified users through the Service.
“Content” means information that We make available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, in each case made accessible via help.Mindflash.com or when You log in to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, Salesforce.com, Shopify, or Yammer.
"Non-Mindflash Applications" means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, without limitation, an application that is developed by, or for You.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Online Order Process” means the online, self-service monthly subscription option available through the Services which enables You to manage, transact, and pay for the Services. By entering into an “Online Order Process” through the Mindflash Service, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Subscription Term” means the period of time designated by the start date and renewal date set forth in the applicable Order Form, or through the Online Order Process.
“User” means an individual who is authorized by You to use a Service and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Each User is automatically designated as “Active” unless and until You designate such User as “Archive.” Users may include, without limitation, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Active User” means an individual who is then-currently authorized by You to use the Service and designated as “Active.”
“Archive User” means an individual who is not then-currently authorized by You to use Service, and is designated by You as an “Archive” user. Archive Users do not have access to the Service, or Your training via the Services. Archive Users are not counted in your Usage Rights count. All history and information for Archive Users is maintained in the Service until the end of the Subscription Term or deleted in accordance with this Agreement. You may, at your discretion, designate and/or reinstate an “Archive” user back into an “Active” user.
“Usage Rights” are the usage terms that are specified in the Order Form, or through the Online Order Process, that specify the allocated number of Active Users that You have been granted to use in the Purchased Services.
"We," "Us" or "Our" means Mindflash Technologies Inc., a Delaware corporation.
"You" or "Your" means you and the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. FREE TRIAL If You register on our website or through an Order Form for a free trial, We will make the applicable Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which We agreed to provide You the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may 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 FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY SUCH FREE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER ANY MATERIALS, INFORMATION, OR DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY SUCH FREE TRIAL (E.G., FROM ENTERPRISE EDITION TO PREMIUM, OR STANDARD); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY SUCH FREE TRIAL, YOU MUST EXPORT YOUR MATERIALS, INFORMATION, AND DATA BEFORE THE END OF THE TRIAL PERIOD OR THE FOREGOING WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) OR ANYTHING TO THE CONTRARY, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services and Documentation available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge (Monday – Friday, from 6am to 5pm PST) and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give commercially reasonable prior electronic notice and which We shall schedule to the extent practicable during non-standard business hours), 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, Non-Mindflash Application, or denial of service attack. The Services are subject to modification from time to time in Our sole discretion, for any purpose deemed appropriate by Us. We will use reasonable efforts to give You prior written notice of any such modification. In the event that any modification materially reduces the features or functionality available to You, then You may terminate this Agreement.
3.4 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.
3.5 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that We make a version of such Beta Services generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. WE HEREBY DISCLAIM ALL LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY BETA SERVICE.
4. YOUR RESPONSIBILITIES
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, or through the Online Order Process, (a) all Services are purchased as subscriptions, (b) subscriptions may be added or upgraded during a Subscription Term and will be prorated for the portion of that Subscription Term remaining at the time the subscriptions are added (but, for the avoidance of doubt, subscriptions may not be cancelled or downgraded, and no refunds will be granted for any incomplete or partial use of a subscription except as described in Sections 3.1 and 12.4), and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Rights and Limits. Services are subject to usage limits, including, for example, the quantities specified in “Usage Rights” in the Order Form(s) or the Online Order Process. Unless otherwise specified, (a) a quantity in an Order Form refers to Active Users, and the Service may not be accessed by more than that number of Active Users, (b) an Active User’s password may not be shared with any other individual, and (c) an Active User may be archived and a new individual (Active User) replacing one who no longer requires ongoing use of the Service may be established. If We determine that You are exceeding the Usage Rights, We will notify You, and You will have thirty (30) days from the date of notice in which to bring Your usage within the limits of such Usage Rights. We may assist You to reduce Your usage so that it conforms to limits of such Usage Rights. If, notwithstanding Our efforts, You are unable or unwilling to abide by the Usage Rights, You will be invoiced in accordance with Section 6.2 below for the excess usage over the Usage Rights, at the rate set forth on the Order Form, or listed on https://www.mindflash.com/pricing, and You agree to pay the additional fees without any right of set-off or deduction).
4.3 Your Responsibilities. You will (a) be responsible for complying (including, without limitation, ensuring that all of Your Users and Your Affiliates’ Users comply) with this Agreement and Mindflash’s policies available at: www.mindflash.com/acceptable-use/ each of which is incorporated into and made a part of this Agreement by reference, (b) be responsible for ensuring that Your Data and Your Materials are at all times accurate and appropriate, are not acquired or provided to Us in violation of any applicable law, policy, contractual restrictions, or other third party rights, and do not infringe or misappropriate any intellectual property or other rights of any party, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations.
4.4 Usage Restrictions. You will not, and will not permit any third party to: (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) license, sublicense, rent or lease any Service, or include any Service in a service bureau offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material or data in violation of third-party intellectual property or privacy rights, (d) use a Service 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 its related systems or networks, (g) permit direct or indirect access to or use of any Service or Documentation in a way that circumvents Usage Rights, (h) copy a Service or any part, feature, function or user interface thereof, except as permitted herein or in an Order Form or the Documentation, (i) frame or mirror any part of any Service or Documentation, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (j) access any Service or Content in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law).
4.5. Removal of Your Materials, Your Data, Content and Non-Mindflash Applications. If We are required by applicable law or any third party to remove Content, or receive information that any of Your Materials or Your Data may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content, Your Data, and/or Your Materials. If We receive information that a Non-Mindflash Application hosted on a Service by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Mindflash Application or modify the Non-Mindflash Application to resolve the potential violation. If You do not take prompt required action in accordance with the above, We may disable or suspend Your access to the applicable Your Data, Your Materials, Content, Service and/or Non-Mindflash Application until the potential violation is resolved.
5. NON-MINDFLASH PROVIDERS
5.1. Acquisition of Non-Mindflash Products and Services. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Mindflash Applications and implementation and other consulting services. Any access to or use by You of such non-Mindflash products or services, and any exchange of data between You and any non-Mindflash provider, is solely between You and the applicable non-Mindflash provider. We do not warrant or support Non-Mindflash Applications or other non-Mindflash products or services, whether or not they are designated by Us as “certified” or otherwise, except as expressly specified in an Order Form.
5.2. Non-Mindflash Applications and Your Data/Your Materials. If You install or enable a Non-Mindflash Application for use with a Service, You grant Us permission to allow the provider of that Non-Mindflash Application to access Your Data and Your Materials as required for the interoperation of that Non-Mindflash Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data or Your Materials resulting from access by a Non-Mindflash Application.
5.3. Integration with Non-Mindflash Applications. The Services may contain features designed to interoperate with Non-Mindflash Applications. To use such features, You may be required to obtain access to Non-Mindflash Applications from their providers, you hereby grant Us permission to access Your account(s), data, materials, and other information on the Non-Mindflash Applications (all of which shall be deemed Your Materials for purposes of this Agreement) to allow such Non-Mindflash Application to interoperate with the Services. We are not responsible for the operation of any Non-Mindflash Applications nor the availability or operation of the Services to the extent such availability and operation is dependent upon Non-Mindflash Applications. If the provider of a Non-Mindflash Application ceases to make the Non-Mindflash Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in each applicable Order Form and in the Online Order Process. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term (and no refunds will be granted for incomplete or partial usage of a subscription, except as set forth in Sections 3.1 and 12.4).
6.2. Invoicing and Payment. For all executed Order Forms, You will provide Us with valid and updated credit card information, or with a valid purchase order, or arrange for EFT. If using the Online Order Process, a valid credit card is the only form of payment accepted. When You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the applicable Order Form or through the Online Order Process, for the initial subscription term and 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 within thirty (30) days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. 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) (including, without limitation, up-front payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue (or seven (7) 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. We will give You at least seven (7) days’ prior notice (for which email shall suffice) that Your account is overdue, before suspending services to You.
6.5. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your access to and use of the Services hereunder (but not, for clarity, any Taxes based on Our gross income). If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.5, We will invoice You and You will pay that amount 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.
6.6. Future Functionality. You agree that Your entering into this Agreement, including your obligations hereunder and your agreement to make payments as set forth in this Section 6, 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.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. 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 You hereunder other than as expressly set forth herein. 7.2. License by Us to Use Content and Documentation. We grant to You a non-exclusive, worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content and Documentation pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation. 7.3. License by You to Host Your Data, Materials, and Applications. You grant Us, Our service providers and Our Affiliates a worldwide, limited term license to host, copy, reproduce, transmit, edit, transform, and display Your Data, Materials, and any program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement, and as may be necessary in order to support the Services in accordance with Your instructions. Except with respect to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or Your Materials or any Non-Mindflash Application or program code.
7.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, commercialize, and otherwise fully exploit, including without limitation by incorporating into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
7.5. Federal Government End Use Provisions. As defined in FAR section 2.101, any software and documentation provided by Us are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. If a government agency has a need for rights not granted under this Agreement, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be fully executed and delivered and included in any applicable agreement to be binding on Us.
8.2. Protection of Confidential Information. 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). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to obligations of confidentiality with the Receiving Party substantially similar to those herein.
8.3. 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.
8.4 Statistical Data. We may monitor Your use of the Service and compile such data with other data to derive statistical and performance information related to the provision and operation of the Service, and we may make such information publicly available, provided that such information does not identify You, or Your Confidential Information.
9. 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 (a) this Agreement, the Order Forms, or Online Order Process, (whichever is applicable), and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable technical specification therefor, (d) subject to Section 5.3 (Integration with Non-Mindflash.com Applications), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, You will notify Us within thirty (30) days of the performance of the relevant Purchased Services. Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You without your consent unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. We will not have any liability for any settlement that We do not approve in advance in writing. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from (A) anything not created by Us, including, without limitation, Your Materials or any third-party Content or Non-Mindflash Application; (B) Your use of the Services in breach of this Agreement or not strictly in accordance with the Documentation; (C) Your specifications, in whole or in part; (D) any modifications to the Services that are made after delivery to You; (E) a combination of the Services with other products, processes, or materials where the alleged infringement relates to such combination; or (F) any continued allegedly infringing activity by You after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, Your Materials, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property or any other rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 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.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. EXCEPT FOR LIABILITIES ARISING OUT OF A VIOLATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. EXCEPT FOR LIABILITIES ARISING OUT OF A VIOLATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated in accordance with this Section 12 or as otherwise set forth in this Agreement.
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 thirty (30) days before the end of the then-current subscription term.
12.3. Termination. A party may terminate this Agreement for cause (i) upon thirty (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 and such petition or proceeding is not dismissed within one hundred twenty (120) days.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You 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, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. You may export or download Your Data and Your Materials at any time throughout the course of your subscription (provided that user passwords are never available for export or download). Upon written request, We will use reasonable efforts to make Your Data and Your Materials available to You for export or download as provided in the Documentation for up to thirty (30) days after the effective date of termination or expiration of this Agreement. After that thirty (30) -day period, We will have no obligation to maintain or provide Your Data or Your Materials, and may thereafter delete or destroy all copies of Your Data and Your Materials in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
12.6. Surviving Provisions. The Sections titled "Fees and Payment for Purchase Services," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Portability and Deletion," " Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration if this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1 Agreement to Governing Law and Jurisdiction. Each party agrees that any action, claim, or dispute between the parties will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The parties agree to the exclusive jurisdiction of and venue in the state and federal courts in San Mateo County and San Francisco, California, respectively.
13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. GENERAL PROVISIONS
14.1. 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. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (the list of which is subject to change without notice) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. 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.
14.3 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. 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.
14.4. 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 (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. 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.
14.6. Children’s Online Privacy Protection Act. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if You are a child under 13, please do not attempt to register for the Services or send any personal information about Yourself to Us. If We learn we have collected personal information from a child under 13, We will delete that information as quickly as possible. If You believe that a child under 13 may have provided Us personal information, please contact Us at email@example.com.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.