Terms of Service
Simplex3D
TERMS OF SERVICE
Last Updated: December 25, 2023
These Terms of Service (the “Agreement“) apply to, and govern, access to and use of the Company Offerings (defined below).
YOU ARE AGREEING TO THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” (OR SIMILAR) BUTTON, BY CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THIS AGREEMENT, OR OTHERWISE BY REGISTERING FOR OR ACCESSING ANY COMPANY OFFERINGS, WHICHEVER IS EARLIER (THE DATE OF SUCH OCCURRENCE, THE “EFFECTIVE DATE”).
This Agreement constitutes a binding agreement between Simplex Mapping Solutions SB Ltd. with a current place of business at 71 Hanadiv Street, Herzliya, Israel (or, if applicable, the other Simplex contracting entity specified in the Service registration page) (“Company“) and the customer specified in such registration page (“Customer“). Company and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement.
1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Content” means any text, data, information, reports, videos, files, images, graphics, software code, or other content.
“Company Offerings” means, collectively, the Service, the Service Content, the Products, and the Product Content.
“Customer Content” means any Content submitted or uploaded to, or transmitted through, any Company Offerings, or otherwise provided or made available to Company, by or on behalf of Customer.
“Documentation” means any Service- or Product-related operational guides or manuals, which Company provides or makes available to Customer, in any form or medium. Unless the context requires otherwise, references in this Agreement to the “Service” and “Product” shall be deemed to include their respective Documentation as well.
“Fees” means any fees and other charges payable by Customer to Company in connection with this Agreement, such as Service Fees and Product Fees (each as defined below).
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, branding, technology, and other intellectual property (collectively, “Intellectual Property“), and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Privacy Policy” means the Company’s privacy policy, currently available at https://www.simplex3d.com/privacy.
“Product” means, as the case may be: (a) a digital file comprised of a 3D map, and/or (b) certain Content (such as data layers) relating to such 3D map.
“Product Order” means an online purchase – via the purchasing functionality within the Service – by Customer of a Product subscription. Each Product Order, once approved by Company, is hereby incorporated by reference into this Agreement.
“Professional Services” means any Company Offerings-related professional services, such as training, configuration, analysis, and customization services.
“Product Content” means any Content appearing on or in, or otherwise provided or made available via, the Product.
“Reseller” means a Company-authorized distributor, referral partner or reseller selling subscriptions to Company Offerings to Customer.
“Reseller Arrangement” means a separate agreement between Customer and a Reseller, which may specify different terms than this Agreement regarding invoicing, taxes and payments.
“Service” means Company’s generally available software-as-a-service (SaaS) offering, known as Simplex3D, and any related web applications, mobile applications, APIs, and other tools that Company makes generally available in connection therewith.
“Service Content” means any Content appearing on or in, or otherwise provided or made available via, the Service.
“Subscription Scope” means any Product-related usage or consumption limitations, entitlements, and parameters (for example, time limits, number of views/users, available features and functionalities, etc.) specified in a Product Order.
“Site” means the Company’s website (together with its subdomains) currently at https://www.simplex3d.com/. For the avoidance of doubt, use of the Site is not governed by this Agreement, but rather by the Website Terms of Use (currently available here: https://www.simplex3d.com/terms).
2. ACCOUNT
In order to access the Service, Customer may be given the opportunity (or otherwise be required) to generate an account by submitting the information requested in the applicable online registration page or Service interface (“Account“). Customer’s Account registration may impose limitations on the number or types of Accounts; absent such limitations, Customer shall be entitled to a single administrator Account that will have administrative privileges over the Account (“Admin Account“) and such number of user Accounts for each user (each, a “User Account“). Customer shall ensure that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Company and Customer, Customer shall be solely responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify Company in writing of any unauthorized access to, or use of, an Account, or any other breach of security. The then-current Privacy Policy describes how the personal information received during the Account registration process will be processed.
3. SUBSCRIPTIONS
3.1. Service Subscription. Subject to the terms and conditions of this Agreement (including without limitation Customer’s payment of all applicable Fees), Company grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right, during the Term, to internally access and use the Service, and view the Service Content, for Customer’s own end-use (the “Service Subscription“).
3.2. Product Subscriptions. From time to time, Customer may subscribe to Products by entering into Product Orders. In connection with each Product Order, and subject to the terms and conditions of this Agreement (including without limitation Customer’s payment of all applicable Fees), Company grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right, during the Product subscription term specified in the Product Order (the “Product Subscription Term“), to internally access, view, and use the applicable Product(s) and Product Content via the Service, for Customer’s own end-use (the “Product Subscription“, and together with the Service Subscription, the “Subscription“).
3.3. General. For the avoidance of doubt: (i) the Subscription is subject to the applicable Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Service or the Product to exceed or circumvent the Subscription Scope, and (ii) the Service and Product are only provided on a subscription basis (and is not sold) hereunder. Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the Subscription, Customer is granted no other right or license in or to the Service or Product, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
3.4. Restrictions. As a condition to the Subscription, and except to the extent permitted otherwise by the Subscription Scope, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, create public Internet “links” to, “frame”, or “mirror” any Company Offerings; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available any Company Offerings to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate any Company Offerings; (d) modify, adapt, translate, or create a derivative work of any Company Offerings; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, weights, or algorithms) of, any Company Offerings; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in any Company Offerings; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of any Company Offerings; (h) use any Company Offerings to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, any of the Company Offerings; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt any Company Offerings, or use any robot, spider, scraper, or any other automated means to access any Company Offerings; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of views, users, endpoints, or servers/machines that directly access or use any Company Offerings (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’); (k) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support any Company Offerings, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (l) use any Company Offerings to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction, or to violate any applicable Law.
3.5. Monitoring. Company and its Affiliates may, from their own systems, monitor, and collect data and information (such as log files and other analytics data) regarding, Customer’s use of the Company Offerings. Company may, without restriction or obligation, use this information for quality control purposes, for enforcement of this Agreement, for analytics and statistics purposes, and for further improving Company’s products and services. Customer shall not interfere with this monitoring, and Company may use any technical means to overcome such interference.
3.6. Delivery and Hosting. The Company Offerings will be made available to Customer electronically (via the Site or via an API integration, as may be elected by Company). Any software and other components that are distributed to Customer shall be deemed accepted upon delivery. The Company Offerings may be hosted internally on Company’s own servers or may be hosted by a third party cloud hosting provider selected by Company (“Hosting Provider“), and accordingly Customer Content may be processed by such Hosting Provider.
3.7. Features and Functionalities. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under a Product Order, unless it improves the material functionality), as well as the user interface, of the Company Offerings. Some features and functionalities may in any event be restricted by geography or otherwise, in order for Company to comply with applicable Law or commitments to third parties. Customer agrees that its purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of Company regarding future functionalities or features.
3.8. Product Misuse. If, as a result of Customer’s breach of the Subscription and/or misuse of any Company Offerings, the Company or its Affiliates (or their respective directors, officers, or employees) (collectively, “Company Indemnitees“) incur or suffer any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs and expenses such as attorney’s fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against a Company Indemnitee (a “Claim“), Customer agrees to: (a) Indemnify and hold harmless Company Indemnitees for such loss and liability, as well as for any amount finally awarded against or imposed upon Company Indemnitees by the court (or otherwise agreed in settlement) under the Claim; and (b) if requested by Company, defend Company Indemnitees against the Claim.
4. PROFESSIONAL SERVICES
Company is not obligated to provide any Professional Services. Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work signed by the Parties and referencing this Agreement (each, a “Professional Services SOW“). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference.
Professional Services will be performed by Company and/or its Affiliates, and are provided for the benefit of Customer only. Customer shall fully cooperate with Company, and shall make available to Company all relevant systems, assets, and resources, in connection with the provision of Professional Services. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Professional Services (in whole or in part) to a third party contractor, and without derogating from Company’s liabilities towards the Customer under this Agreement. Unless expressly agreed otherwise in writing, Professional Services shall be carried out remotely, and any physical attendance at Customer’s offices or other locations requested by Customer, if agreed to by Company (for example, in a Professional Services SOW), shall be charged at Company’s then-current rates, and Company shall also be entitled to reimbursement for travel and lodging costs and expenses incurred.
5. PAYMENT
5.1 Service Fees. Customer agrees to pay Company any Service-related fees and charges set forth in the Service registration page (the “Service Fees“).
5.2 Product Fees. In respect of each Product Order, Customer agrees to pay Company the fees and other charges set forth in the Product Order (the “Product Fees“, and together with the Service Fees, the “Fees“). Company shall be entitled from time to time, and by written notice, to increase the Product Fees; provided, however, that the updated Product Fees shall apply to the next Product Order renewal, provided that such notice was given at least thirty (30) days prior to such renewal.
5.3 Payment Terms. Unless expressly stated otherwise in the Product Order: (a) all Fees are stated, and are to be paid, in US Dollars; (b) billing cycles for the Subscription are on an annual basis; (c) Company shall be entitled to invoice Customer for Fees in advance at the commencement of each billing cycle (except for Fees for any overages, which are charged in arrears), and Customer shall pay each invoice within thirty (30) days of receipt of invoice; (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable Law; and (e) Company shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Product Order and/or via a functionality of the Service.
5.4 Payment Dispute. If Customer believes that Company has invoiced Customer incorrectly, Customer must contact Company no later than thirty (30) days after receiving the invoice in which the alleged error appeared; otherwise Customer shall be deemed to have waived all claims in connection with the applicable invoice and payment.
5.5 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
5.6 Payment Processing. Customer represents and warrants that any payment and billing information provided is (and will remain) complete and accurate, and Customer has obtained all necessary consents to enable the necessary payment method. If applicable to the payment method, payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer’s billing information), and additional terms may apply to such payments. Customer authorizes Company (and/or its designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from Customer on a recurring basis; and (b) make any inquiries Company deems necessary, from time to time, to validate Customer’s designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer’s payment, credit card, or banking account provider – such as, updated expiry date or card number).
5.7 Reporting; Usage Audit. Company may issue Subscription- and Fee-related reporting and billing notices via email to the applicable Customer contact email address specified in the Product Order, as well as via a functionality of the Service.
5.8 Purchases through Resellers. Customer may be entitled to purchase certain Company Offerings through a Reseller pursuant to a Reseller Arrangement, and, to that extent, Customer’s payment obligations under this Section (Payment) shall not apply. Company will only be obligated to provide Company Offerings to Customer in connection with a Reseller Arrangement if Company and the Reseller have executed a purchase order for such purchase. Customer acknowledges and agrees that: (a) Company may share information with the Reseller related to Customer’s use and consumption of the Company Offerings; (b) Company shall be entitled to withhold or otherwise suspend Customer’s access to the applicable Company Offering if Company has not been paid by Reseller; (c) this Agreement governs Customer’s use of the applicable Company Offering(s), notwithstanding anything to the contrary in the Reseller Arrangement; and (d) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Company or in any way concerning the Company Offerings.
6. CUSTOMER CONTENT
6.1 Ownership. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content.
6.2 Location of Customer Content. Customer acknowledges and agrees that Customer Content may be hosted and processed by Company (and its Affiliates, Hosting Providers, and respective third party service providers) in Israel, the United States, the European Economic Area (EEA), the United Kingdom, and other locations around the world
6.3 No Sensitive Data. Unless the Service specifically requests otherwise, Customer shall ensure that no Customer Content includes or links to Sensitive Data. “Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
6.4 Responsibility for Customer Content. Customer is solely responsible for the legality, accuracy and quality of Customer Content, such as for ensuring that Customer’s collection, processing, storage and transmission Customer Content is compliant with all applicable Laws, as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its customers. Customer represents and warrants that: (a) no processing of Customer Content under this Agreement (whether by Company, its Affiliates, or if applicable the Hosting Provider) will violate any Law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy Laws (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Company, its Affiliates, and the Hosting Provider (if applicable).
6.5 License to Customer Content. Customer hereby grants to Company and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (to Company’s data subprocessors, Hosting Providers, as well as to third party service providers engaged by Company in the provision of the Company Offerings), irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use your Customer Content (in any media, now known or hereafter developed): (A) during the Term of this Agreement, for the purpose of performing under this Agreement, including, without limitation, to provide the Service and to prevent or address Service technical problems; and/or (B) on a perpetual basis, (i) as may be required by Law, and (ii) provided the Customer Content is anonymized, for the purpose of generally enhancing the Company Offerings (such as developing new features and functionalities).
6.6 Privacy Policy. The Privacy Policy outlines Company’s practices towards handling any personal information that Customer may provide to the Company and/or that Company may collect in the course of providing the Company Offerings to Customer hereunder. To the maximum extent permitted by Law, Customer hereby consents to the Privacy Policy, and the Privacy Policy is hereby incorporated by reference.
7. COMPANY INTELLECTUAL PROPERTY
Company (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Service and the Service Content; (b) the Product and the Product Content; (c) Company’s Confidential Information; (d) any feedback, suggestions, or ideas for or about any Company Offerings (collectively, “Feedback“); and (f) any improvements, derivative works, enhancements, and/or modifications of/to any Company Offerings, regardless of inventorship or authorship. To the extent any of the foregoing Intellectual Property Rights do not automatically vest in Company, Customer hereby irrevocably assigns (and shall assign) same to Company (and its designees, successors, and assigns).
8. CONFIDENTIALITY
Each Party (as “Receiving Party”) will: (a) protect the Confidential Information (defined below) of the other Party (the “Disclosing Party“) using the same degree of care that Receiving Party uses to protect its own Confidential Information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of Receiving Party and its Affiliates’ employees, contractors, and professional advisors (such as lawyers and accountants) who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by Law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information including, without limitation, the opportunity to seek appropriate administrative or judicial relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. For the avoidance of doubt, the Products and the Service are Confidential Information of Company. Confidential Information shall not, however, include information that: (a) was rightfully in Receiving Party’s possession or known to it (on a non-confidential basis) prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party. Receiving Party shall not remove, alter, or conceal any copyright, trademark, patent, or other proprietary rights notices displayed on or in Confidential Information.
9. DISCLAIMERS
9.1. THE COMPANY OFFERINGS, THE PROFESSIONAL SERVICES, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF THE COMPANY HEREUNDER (COLLECTIVELY, THE “COMPANY MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS SUPPLIERS AND LICENSORS.
9.2. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, ACCURACY, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS (FOR EXAMPLE, THAT THE PRODUCTS ARE ACCURATE OR UP-TO-DATE); (B) THAT CUSTOMER’S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING CUSTOMER ACKNOWLEDGES AND AGREES THAT: (x) CUSTOMER’S USE OF, AND RELIANCE UPON, THE PRODUCTS AND THE SERVICE IS AT CUSTOMER’S SOLE RISK, AND CUSTOMER SHALL EXERCISE CAUTION, AND TAKE PRECAUTIONARY MEASURES, IN SUCH USE AND RELIANCE; (y) SOME PRODUCTS MAY BE BASED ON PUBLIC, OR EXTERNALLY SOURCED, CONTENT THAT IS LICENSED TO COMPANY, AND IN THE EVENT SUCH LICENSE EXPIRES OR TERMINATES, SUCH CONTENT MAY NO LONGER BE AVAILABLE OR USABLE; AND (z) THE GEOGRAPHICAL COVERAGE OF A PRODUCT WILL NOT NECESSARILY MATCH THE OFFICIALLY RECOGNIZED BOUNDARIES OF THE CORRESPONDING CITY, COUNTY, OR OTHER LOCATION.
10. LIMITATION OF LIABILITY
10.1. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(a) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(b) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(c) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(d) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2. THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
10.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF COMPANY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, OR OTHERWISE.
11. INDEMNIFICATION
In the event that, during the Term of this Agreement and the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s authorized use of the Service in accordance with this Agreement infringes such third party’s copyright or patent (an “Infringement Claim“), Company shall: (a) defend Customer against the Infringement Claim; and (b) indemnify and hold harmless Customer for any amount finally awarded against Customer by the court (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Company, shall reduce the indemnifiable amount to be paid by Company by the amount of such recovery). Company will have no obligation or liability under this Section (Indemnification by Company) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Service not made by Company; (ii) the combination of the Service with any third party product or service; (iii) any Customer instructions or specifications; (iv) any Customer breach under this Agreement; and/or (v) any failure by Customer to use the most current version of the Service made available by Company pursuant to this Agreement.
As a condition to the foregoing under this Section (Indemnification), Customer must: (A) provide Company with prompt written notice of the Infringement Claim; (B) cede to Company sole control of the defense and settlement of the Infringement Claim; (C) provide Company with all information and assistance reasonably requested by it; and (D) not admit any liability under (or otherwise compromise the defense of) the Infringement Claim. The Customer may participate in the defense of the Infringement Claim at its own cost and expense.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of all Product Orders (“Term“). Accordingly, once all Product Orders have expired or been terminated, the Term ends and this Agreement automatically terminates.
12.2. Term of Product Orders. At the end of the applicable Product Subscription Term, each Product Order shall automatically renew for successive periods of equal length, unless either Party notifies the other Party in writing that it chooses not to renew the Product Order (“Non-Renewal Notice“); provided, however, that the Non-Renewal Notice is given at least ninety (90) days prior to the end of the then-current Product Subscription Term. At the commencement of each renewal Product Subscription Term, Company shall be entitled to invoice Customer for the applicable Product Fees therefor.
12.3. Termination. This Agreement, as well as any Product Order, may be terminated as follows:
(a) In accordance with any termination rights specified the Product Order;
(b) Either Party may terminate this Agreement or a Product Order for cause upon written notice if the other Party commits a material breach under this Agreement or the Product Order, and fails to cure such breach within thirty (30) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is non-payment by Customer;
(c) Either Party may terminate this Agreement or any Product Order upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and/or
(d) Company may terminate a Product Order for convenience upon thirty (30) days’ prior written notice to Customer. In case of such termination for convenience by Company, Customer shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Product Fees under the Product Order based on the remaining period of the then-current Product Subscription Term.
12.4. Suspension. Company reserves the right to temporarily suspend Customer’s access to the Company Offerings: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach of the Subscription (such as a breach under Section 3.4 (Restrictions)); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Company Offerings; or (d) as required by Law or at the request of governmental entities.
12.5. Effect of Termination. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access to, and use of, the Company Offerings, and shall permanently erase any copies of the Product, and certify in a signed writing that it has done so; (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination (even if termination takes effective prior to the end of a billing cycle), which shall become immediately due and payable, and, if necessary Company shall issue a final invoice therefor; and (d) upon written notice to Company, Customer will have up to thirty (30) calendar days to access the Service solely to the extent necessary to retrieve Customer Content (“Retrieval Right“) (and if Customer exercises its Retrieval Right, this Agreement shall continue in full force and effect for the duration of the Retrieval Right). Company shall have no further obligation to make Customer Content available after the later of (A) the effective date of termination of this Agreement, or (B) the Retrieval Right period, if applicable, and thereafter Company shall be entitled to delete the Customer Content.
12.6. Survival. Sections 6 (Customer Content) through 13 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
13. MISCELLANEOUS
13.1. Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify, or supplement this Agreement shall be void and of no effect (even if signed by a party). The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relied upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
13.2. Amendment. This Agreement may only be modified or supplemented by a written instrument referencing this Agreement, which is duly signed by each Party.
13.3. Third Party Content. The Company Offerings may present, or otherwise allow Customer to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Company (such Content, “Third Party Content“). The display or communication to Customer of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Content or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for Third Party Content or for the third party’s policies, practices, actions, or omissions.
13.4. Third Party Software. The Service may include what is commonly referred to as ‘open source’ software. Under some of their respective license terms and conditions, Company may be required to provide Customer with notice of the license terms and attribution to the third party, in which case Company may provide Customer with such information (whether via the Service, via the Site, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to Customer hereunder), and to the extent any such license terms and conditions grant Customer rights that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Company will comply with any valid written request submitted by Customer to Company for exercising any rights Customer may have under such license terms and conditions.
13.5. Assignment. This Agreement may not be assigned by Customer, in whole or in part, without Company’s prior express written consent. Company may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns.
13.6. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods, as well as the Uniform Computer Information Transactions Act (UCITA) (regardless of where or when adopted), shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New Castle County, Delaware and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company’s officers, directors, representatives, employees, or agents.
13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
13.8. Publicity. Company may use Customer’s name and logo on Company’s website and in its promotional materials to state that Customer is a customer of Company.
13.9. Supplemental Terms. Features and functionalities may be accompanied by separate or additional terms and conditions (“Feature Specific Terms“). Third Party Content may be accompanied by separate or additional terms and conditions (“Third Party Content Terms“, and together with Feature Specific Terms, “Supplemental Terms“). Supplemental Terms may be set forth in the Product Order and/or may require Customer’s acceptance (via the Service) prior to Customer accessing the applicable feature, functionality, or Third Party Content. Except to the extent expressly stated otherwise within the Supplemental Terms, all Supplemental Terms apply in addition to (and not instead of) this Agreement.
13.10. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
13.11. No Third Party Beneficiaries. Except as may be otherwise expressly provided in this Agreement (such as Company’s Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
13.12. Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
13.13. Notices. Any notice or communication required or permitted under this Agreement will be in writing to the Parties at the addresses set forth in this Agreement or Product Order or at such other address as may be given in writing by either Party to the other in accordance with this section and will be deemed to have been received by the addressee upon: (a) personal delivery; (b) the second business day after being mailed or couriered; or (c) the day of sending by email, except for notices of breach (other than for non-payment) or an indemnifiable claim, which for clarity must be made by mail or courier. Email notifications to Company shall be to [email protected].
13.14. Export Compliance. Customer represents and warrants that: (a) it is not a resident of, and will not access or use the Company Offerings in, a country that the U.S. government has embargoed for use of the Company Offerings, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Company. Customer shall not transfer, export, re-export, import, re-import or divert the Company Offerings in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert the Company Offerings to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, the Crimea, Donetsk, or Luhansk regions of Ukraine, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
13.15. Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Company’s suppliers, licensors, service providers, or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party.
13.16. Customer Resources. Except for the Company Offerings, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Company Offerings; and (b) for ensuring their compatibility with the Company Offerings.
13.17. Expense. Except as may be expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
13.18. Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Company Offerings constitute “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Company Offerings shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
13.19. Subpoenas. Nothing in this Agreement prevents Company from disclosing Customer Content to the extent required by Law, subpoenas, or court orders, but Company will use commercially reasonable efforts to notify Customer where permitted to do so.
13.20. High-Risk Activities. Customer shall not use the Company Offerings with or for, and acknowledges that the Company Offerings are not intended for, High-Risk Activities. “High-Risk Activities” means activities where use or failure of the Company Offering could lead to death, personal injury, damage to tangible property, or environmental damage, and includes without limitation security, law enforcement, life support systems, emergency services, nuclear facilities, autonomous vehicles, and traffic control.
13.21. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Company’s employees or agents, or otherwise from any Resellers, in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer shall use reasonable efforts to promptly notify Company.
