SG Systems, LLC
TERMS OF SERVICE AND SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, DOWNLOADING, INSTALLING, USING, OR ACCESSING ALL OR ANY PORTION OF THE SOFTWARE (DEFINED BELOW) YOU AGREE TO, ACCEPT, AND ARE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT OR CAN NOT AGREE TO AND ACCEPT THE TERMS AND CONDITIONS OF THIS THIS AGREEMENT, YOU MUST NOT COPY, DOWNLOAD, INSTALL, USE, OR ACCESS ANY PORTION OF THE SOFTWARE.
This Terms of Service and Software License Agreement (“Agreement”) is a contract entered into between You (“you,” “your,” “yours”) and SG Systems, LLC (“SG Systems,” “we,” “us,” “our,”), and any of our affiliates, to the extent expressly stated. You and SG Systems may be referred to individually as “Party” and collectively as the “Parties.” This Agreement, together with any Quotes, Statements of Work, Purchase Orders explicitly agreed to by Us, or Additional Terms and Conditions (collectively, the “Additional Terms”), which are herein incorporated by reference, govern your access to and use of the technology services and software provided by SG Systems.
IF YOU AGREE TO THIS AGREEMENT AND ANY ADDITIONAL TERMS ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS AND FURTHER UNDERSTAND AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THIS AGREEMENT AND THE ENTIRETY OF THE AGREEMENT AND ADDITIONAL TERMS. IN THAT EVENT, “YOU,” “YOUR,” AND “YOURS” WILL REFER AND APPLY TO YOU AS AN INDIVIDUAL AND THAT ENTITY OR AGENCY.
IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ADDITIONAL TERMS WITH RESPECT TO THE SOFTWARE OR SERVICES, THE TERMS OF THIS AGREEMENT SHALL CONTROL. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU OR ON YOUR BELHALF, WHETHER IN A PUCHASE ORDER OR OTHERWISE, ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY US AND THEY ARE VOID, UNLESS EXPLICITLY AGREED TO BY US IN WRITING.
- “Anonymize” refers to removal of Personal Information and any information reasonably likely to identify a company or other business entity; provided such revised data does not include and is not subject to any key, code, or other mechanism that could be used to restore such information.
- “Business Day” means Monday, Tuesday, Wednesday, Thursday, and Friday, excluding any Public Holiday.
- “Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation, desktop computers, laptops, tablets, terminals, mobile devices, telecommunication devices, internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.
- “Confidential Information” means any information one party discloses to another and is (a) clearly marked as confidential by the disclosing party; (b) orally designated as confidential at the time of disclosure; (c) any source code disclosed by Us; (d) any names of actual or potential customers of either party; or (e) any other nonpublic, sensitive information disclosed. Confidential Information does not include any information that is (f) in the receiving party’s possession at the time of disclosure; (g) independently developed by the receiving party without use of or reference to any Confidential Information; (h) becomes known publicly, before or after disclosure, other than as a result of the receiving party’s improper action or inaction; or (i) is approved for release in writing by the disclosing party.
- “Delivery” has the meaning assigned to it in Section 10.4.
- “Documentation” means any technical specifications, functional specifications, descriptions, instructions for use, operation, or access that is provided by Us, whether digitally or physically, as an accompaniment to the Software or Services, if at all.
- “Excluded Data” means all Personal Information, including without limitation Social Security numbers, other personal tax ID numbers, military identification numbers, student identification numbers, passport numbers, driver’s license numbers, other government identification numbers, financial account data, payment card numbers, biometric information, health or medical information, insurance information, educational information, usernames, e-mail addresses, Internet protocol addresses, passwords, access codes, and security questions, as well as any information that if compromised could permit a person to assume the identity of the data subject.
- “Hardware” means any physical device required, necessary, or desirable for the purpose of accessing the Software or Services, including but not limited to Computers (as defined herein), batteries, battery chargers, barcode scanners, label printers, routers, and ethernet cords.
- “Permitted Number” means the number of licenses granted to You by Us as can be found in the Quantity field of any Additional Terms. Quantities are listed per MAC address.
- “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, could reasonably be used to infer information about, or could reasonably be linked, directly or indirectly, with an individual person or household.
- “Public Holiday” mean a public holiday, national holiday, or legal holiday is a holiday generally established by law, including any holiday designated by Federal or Texas statute, specifically those listed in 5 U.S. Code § 6103.
- “Services” has the meaning assigned to it in Section 3.1
- “Software” means all of the information with which this Agreement is provided, including, but not limited to all software files and other computer information and any proprietary scripting logic embedded within the exported file formats. The specific Software provided to You can be found in any Additional Terms provided by Us.
- “Subscription” has the meaning assigned to it in Section 6.2.
- “Term” has the meaning assigned to it in Section 13.1.
- “Total” means the total amount owed, as stated in Your Additional Terms or otherwise communicated by Us to You. The Total may change upon the addition or removal of Services, Hardware, or a change in Permitted Numbers.
- “Updates” means any modified versions and copies of, and upgrades, updates, and additions to Software provided to You by Us at any time, to the extent not provided under separate terms.
- “Your Data” means all information processed or stored through the Software, Services, Hardware, or in the Additional Terms by You or on Your behalf. Customer Data includes, without limitation, information provided by Your customers, suppliers, affiliates, employees, and other users and by other third parties, other information generated through use of the Software, Services, or Hardware by or on Your behalf, and copies of all such information rendered onto paper or other non-electronic media. We recognize and agree that Customer Data may contain Personal Information, even if the presence of such information is not disclosed and even if such information is not labeled or otherwise identified.
- Software License. SG Systems grants You a nonexclusive, nontransferable license to reproduce, access, operate, and use the Permitted Number of copies of the Software for Your internal business purposes, provided that You comply with the restrictions set forth in this Agreement.
- Documentation License. SG Systems grants You a nonexclusive, nontransferable license to reproduce, copy, and use a reasonable number of copies of any Documentation, for your internal business purposes only.
- Archival Copies. You may create one archival copy of the Software provided You affix to such copy all copyright, confidentiality, and proprietary notices that appear on the original.
- License Limitations. Copies of the Software created or transferred pursuant to this agreement are licensed, not sold, and You receive no title to or ownership of any copy or of the Software itself. Furthermore, You receive no rights to the Software or any Documentation other than those specifically granted in this Section 2. Without limiting the foregoing, You shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software or Documentation; (b) use the Software for service bureau or time-sharing purpose, rent, lease, distribute, or in any other way allow third parties to exploit the Software or any Documentation; (c) reproduce, access, operate, or use the Software for operations not initiated by an individual user (e.g., automated server processing); or (d) reverse engineer decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
- You grant to Us, and any independent accountant hired by Us, the right to examine your books, records, systems, facilities, and accounts during Your normal business hours to verify compliance with this Section 2. Additionally, You shall promptly provide Us with all records and information requested by Us in order to verify Your compliance with this Section 2. In the even such audit discloses that You have exceeded the Permitted Number, You shall promptly remit payment to Us for the appropriate number of additional licenses. At Our sole discretion, We may terminate this Agreement for Your failure to pay any additional amounts pursuant to this Section 2.5.
- Software Updates, Changes, and Internet Access. You understand, acknowledge and accept that (a) We may change the type of Software, including but not limited to specific products, components, versions, platforms, languages, and Updates, at any time and shall not be liable to You whatsoever for such change; (b) You may be required to connect to the internet at any time during the Term; and (c) Software may automatically connect to the internet to verify Your Subscription status without notice at any time.
- Intellectual Property Ownership. The Software, any Documentation, and any authorized copies made are the intellectual property of and are owned by SG Systems, and any heirs, assigns, transferees, associates, or suppliers, if applicable. The structure, organization, and source code of the Software are valuable trade secrets and confidential information of by SG Systems, and any heirs, assigns, transferees, associates, or suppliers, if applicable. The Software and any Documentation is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant You any intellectual property rights in the Software. All rights not expressly granted are reserved by SG Systems, and any heirs, assigns, transferees, associates, or suppliers, if applicable.
- Services Defined. We will maintain Hardware support specific to the ability to reproduce, access, operate and use the Software, Software support, troubleshooting, online training, advisory services, project management, a virtual factory, cloud-based Software hosting, and setup, installation, configuration, and implementation services. The extent of Services We shall provide to You, including the hours, days, and preferred response time, are can be found in the Additional Terms, if any.
- Coverage and Target Response Time. Unless otherwise stated in Your Quote, Statement of Work, or Purchase Order, Services are available from 9am to 5pm U.S. Central Time, Monday through Friday, excluding Public Holidays. Unless otherwise stated in the Additional Terms, SG Systems will aim to respond to support requests within 12 working hours. SG Systems makes no guarantee, representation, or warranty that any Services will be available at any particular time or within any time frame.
- During the Term, We shall exercise commercially reasonable efforts to promptly correct any failure of the Software to perform according to any Documentation or Additional Terms. Any such maintenance may, but is not required to, include Updates, and is not considered part of the Services.
- Hardware Not Included. Unless otherwise stated in the Additional Terms, You are solely responsible for obtaining, maintaining, and providing Hardware, including, without limitation, network and power cabling supply and installation.
- Hardware Obsolescence and Software Updates. We will, from time to time, provide Updates, with or without notice. Updates do not include any updates or upgrades in Hardware, which may be required for any Update to be reproduced, accessed, operated, and used as intended. You understand, acknowledge, and accept that, except as otherwise provided for in the Additional Terms, You are solely responsible for the ability for the Software, including any Updates, to be reproduced, accessed, operated, and used on any particular Hardware, regardless of whether such Hardware was provided by Us.
- You understand, acknowledge, and agree that You are responsible for the reliability of your local network, internal network, and internet access. We are not responsible for any network failure or interference which compromises your ability to reproduce, access, operate, or use the Software or ability to request or receive any Services.
RESTRICTIONS AND REQUIREMENTS.
- Proprietary Notices. Any permitted copy of the Software or any Documentation that You make must contain the same copyright and other proprietary notices that appear on or in the Software. You shall not modify, obscure or remove any product identification or proprietary notices on the Software, any Documentation, or copies thereof.
- Use Obligations. You agree that You will not reproduce, access, operate, or use the Software other than as permitted by this Agreement and that You will not reproduce, access, operate, and use the Software in a manner inconsistent with its design or any Documentation.
- No Modification. Except as expressly permitted in any Additional Terms, You may not modify, port, adapt, or translate the Software, or incorporate the Software into or with other software.
- No Circumvention. You may not (a) use any element of the Software to circumvent any technological measures intended to control access to the Software or (b) develop or distribute products that are designed to circumvent any such technological measures (except to the extent permitted by applicable law).
- Additional Prohibited Uses. The Software and Documentation may be used solely for Your internal business. Only Your officers, employees, and authorized contractors may use the Software and Documentation, in each case only as permitted in this Agreement or any Additional Terms. You will not, and will not permit others to: (a) use the Software other than as set forth in the Documentation or this Agreement;(b) use the Software to store or transmit Harmful Code or any infringing, defamatory, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or other rights; (c) modify, disassemble, reverse engineer, decompile, translate or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software or any Documentation or any portions thereof (in each case, to the extent this restriction is permitted by law); (d) access or use the Software or Documentation for the purposes of benchmarking or competitive analysis, or developing any competitive product or service; or (e) use the Software or any Documentation in violation of any applicable law, regulation or rule.
- Automatic Connections to the Internet. The Software, Hardware, and Services may cause a Computer, without notice, to automatically connect to the Internet and to communicate with a website or domain hosted, used, or controlled by Us for purposes such as validating the Permitted Number or Software license and providing You with additional information, features, functionality, or Documentation.
- Support and Promotional Messaging. As permitted by applicable law or as consented by You, we may (a) send You transactional messages to facilitate the Services, or (b) deliver marketing to provide information about the Software, Hardware, or Services.
- The Software, Hardware, and Services may cause a Computer, without additional notice, to automatically connect to the internet intermittently or on a regular basis to (a) check for Updates that are available for download to and installation on the Computer and (b) notify Us of the results of installation attempts.
- Online Services. The Software, Hardware, and Services may cause a Computer, without additional notice, to automatically connect to the internet intermittently or on a regular basis to facilitate Your access to Services or to download material to provide immediate availability of Services even when You are offline.
- Payment Schedule for Hardware. You shall provide payments to Us according to the following schedule: (a) 50% of the Total is due at the execution of this Agreement; (b) 50% of the Total is due upon notification that your Hardware is ready to ship.
- Payment Schedule for Services. Services are provided as a subscription (“Subscription”), with a minimum period of one year from the execution of this Agreement. Unless otherwise stated in the Additional Terms, any such Subscription is automatically renewed on a monthly basis and payment is immediately due upon renewal.
- Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Software. b) You must pay with one of the following: 1) A valid credit card acceptable to SG Systems, LLC. 2) A valid debit card acceptable to SG Systems, LLC.3) Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or 4) By another payment option SG Systems, LLC provides to you in writing.
During the term of this Agreement and for six months after termination, neither party shall solicit any of the other’s employees involved in the Services to consider alternate employment. For the avoidance of doubt, the preceding sentence does not forbid a solicitation to the general public.
Neither party shall use any Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement. The party receiving any Confidential Information (a) shall not disclose Confidential Information to any employee or contractor of such receiving party, unless such person needs access in order to facilitate the transactions contemplated by this Agreement and executes a non-disclosure agreement with terms no less restrictive than those of Sections 4, 8, and 9 and (b) shall not make known any Confidential Information to any third party without the disclosing party’s prior written consent. Without limiting the generality of the foregoing, the receiving party shall protect any Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The receiving party shall promptly notify the disclosing party of any misuse or misappropriation of any Confidential Information that comes to the receiving party’s attention. Notwithstanding the foregoing, the receiving party may make known Confidential Information as required by applicable law or by proper legal or governmental authority. The receiving party shall give the disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with the disclosing party in any effort to seek a protective order or otherwise contest such demand, at the disclosing party’s expense.
DATA MANAGEMENT AND PRIVACY
- Data Ownership and License. You understand, acknowledge, and accept that You possess and retain all right, title, and interest in and to Your Data, and Our use and possession thereof is solely on Your behalf. We further recognize and agree that: (a) Your Data is valuable property; (b) Your Data may include Your trade secrets; (c) Your Data may be an original compilation pursuant to the copyright law of the United States and other jurisdictions; and (d) You may have dedicated substantial resources to collecting, managing, and compiling Your Data. You hereby grant Us a limited license to reproduce and otherwise manage Your Data during the Term of this Agreement.
- Excluded Data. You represent and warrant that (a) You have not and will not transmit Excluded Data or permit transmission of Excluded Data, to Us or Our Computers or other media and, (b) to the best of Your knowledge, Your Data does not and will not include Excluded Data. You shall inform Us of any Excluded Data within Your Data promptly after discovery (without limiting Our rights or remedies). You understand, acknowledge, and accept that: (c) the provisions below this Section 9.2 do not apply to Excluded Data; (d) We have no liability for any failure to provide protections for Excluded Data provided for in any laws in any applicable jurisdiction or otherwise to protect Excluded Data; and (e) Our systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. We are not responsible or liable for any exposure, release, or disclosure of Excluded Data or other loss to the extent that it involves Excluded Data, except as otherwise provided for in this Agreement or any Additional Terms.
- Use and Disclosure. We may access and use Your Data solely as necessary to provide the Software, Hardware, Documentation, and Services to You, and unless we receive Your prior written consent, We: (a) shall not access or use Your Data for any purpose other than to provide the System; and (b) shall not give any third party access to Your Data, except Our subcontractors, transferees, assignees, or employees. Notwithstanding any other provision of this Agreement, We may disclose Your Data as required by applicable law or by proper legal or governmental authority. We shall give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.
- Aggregate and Anonymized Data. Notwithstanding Section 9.3 of this Agreement, You hereby authorize Us: (a) to Anonymize Your Data and to combine it with data from other customers into a new aggregate dataset (“Anonymized Data”); and (b) to use any such Anonymized Data as a component of such new aggregate dataset for any legal business purpose, including without limitation for distribution to third parties. Without limiting the generality of the requirements for Anonymized Data below, We shall: (c) implement technical safeguards that prohibit reversal of Anonymization Data; (d) implement business processes that specifically prohibit such reversal or recreation; (e) make no attempt to achieve such reversal; and (f) implement reasonable business processes to prevent inadvertent release of any Anonymized Data.
- Privacy and Security Law Compliance. We shall comply with all applicable laws and regulations governing Our access to, use of, and handling of Your Data; provided the foregoing does not require that We comply with or be aware of any law or regulation regarding any Excluded Data.
- Your Access and e-Discovery. You may access and copy any of Your Data in Our possession at any time. We shall reasonably facilitate such access and copying promptly after Your request, provided We may charge our reasonable then-standard fees for any such access and copying or for any related deconversion of data.
- Except as required by applicable law or authorized pursuant to any Additional Terms, We shall not erase Your Data or any copy thereof without Your prior written consent, except We may permanently erase Your Data if Your account is delinquent, suspended, or terminated for 30 days or more, without limiting Provider’s other rights or remedies. Further, We shall: (a) halt Your Data deletion promptly if You inform Us that any of Your Data is subject to “e-discovery” or otherwise relevant to potential litigation; (b) at such times as You may request (including without limitation as a result of Consumer Requests made mandatory by applicable law), promptly erase any of Your Data from all systems under Our control and direct and ensure erasure by any and all of its subcontractors that have access to Your Data; and (c) within 90 days of termination (including without limitation expiration) of this Agreement, erase any of Your Data in Our possession or control, including without limitation in the possession or control of its subcontractors, subject to Our rights above (if any) in Section 9.4 of this Agreement. In erasing Your Data as required by this Agreement, We shall leave no data readable, decipherable, or recoverable on our Computers or other media or those of its subcontractors, using the best erasure methods commercially feasible. Promptly after any erasure of Your Data or any part of it, We shall certify such erasure to You in writing.
- General Security. Without limiting the generality of its obligations elsewhere in this Agreement, We shall exercise commercially reasonably efforts to prevent unauthorized exposure or disclosure of Your Data.
- Employees and Subcontractors. We shall not permit any of its employees, subcontractors, or subcontractor employees to access Your Data except to the extent that such individual or company needs access to facilitate the Software, Hardware, Services, or Documentation and is subject to a reasonable written agreement with Us, or in case of employees, a reasonable written employment policy, protecting such data, with terms consistent with those of this Section 8.
- Data Incidents. We shall implement and maintain a program for managing unauthorized disclosure of, access to, or use of Your Data (“Data Incidents”). In case of a Data Incident, or if We suspect a Data Incident, We shall: (a) promptly, and in any case within 72 hours, notify You of any such Data Incident; (b) cooperate with You and law enforcement agencies, where applicable, to investigate and resolve the Data Incident, including without limitation by providing reasonable assistance to Customer in notifying injured third parties; and (c) otherwise comply with applicable laws governing data breach notification and response. We shall give You prompt access to such records related to a Data Incident as You may reasonably request, and such records will be Our Confidential Information pursuant to Section 8 of this Agreement; provided We are not required to give You access to records that might compromising the security of any of Our other customers.
- No Data Storage or Processing. Notwithstanding any other provision of this Agreement, the Parties understand, acknowledge, and accept that: (a) We do not provide data storage or processing; (b) We are not expected to collect, store, otherwise process, or have directly disclosed to it Your Data or any Personal Information; (c) any access to Your Data We may have through the Services would be incidental and meant to be temporary and would not be intended for data processing; and (d) as to Your Data, We are not and will not be a “data processor” pursuant to the European Union’s General Data Protection Regulation (“GDPR”) or a “third party” or “service provider” to Customer pursuant to the California Consumer Privacy Act (“CCPA”), and We have and will have no comparable role or status pursuant to other laws governing personal information.
- Consumer Requests and Additional Fees. If We receive a “right to know,” deletion, “right to be forgotten,” or similar request related to Your Data or any Personal Information provided to Us by You, We are not required to respond on Your behalf or on Our own behalf, but We may do so. Nothing in this Agreement precludes Us from asserting rights or defenses we may have under applicable law related to such requests. You understand, acknowledge, and accept that We may charge additional fees (without limitation) (a) for activities (if any) required of Us by any applicable law or regulation related to Your Data or any other Personal Information provided to Us by You and (b) for activities You request and We agrees to perform to help You comply with any applicable law or regulation related to Your Data or any other Personal Information provided to Us by You.
- Limited Warranty. We warrant that for a period of 90 days from the date of Delivery that (a) the media on which the Software is furnished will be free from defects in materials and workmanship under normal use; and (b) the software substantially conforms to the Documentation.
- License Warranty. We represent and warrant that SG Systems is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that we have and will maintain the full power and authority to grant the intellectual property rights to the Software in this Agreement (a) without the further consent of any third party and (b) without conditions or requirements not set forth in this Agreement.
- Hardware Support and Warranties. All Hardware provided to You by Us is provided with a standard manufacturer’s warranty, which will be made available to You. You understand, acknowledge, and accept that You are solely responsible for locating, understanding, and accepting the terms of any such warranty. While We provide Hardware support services, We make no guarantee, representation, or warranty about any Hardware, including fitness for a particular purpose, nor are we responsible for any such Hardware.
- Delivery, Acceptance, and Rejection. We shall deliver or cause delivery of any Hardware and Software as stated in any Additional Terms (“Delivery”). Any Hardware and Software will be considered accepted (a) when You provide us with written notice of acceptance or (b) 90 days after Delivery, if You have not first provided us with written notice of rejection. You may reject any Hardware or Software provided by Us only in the even that it materially deviates from any Documentation and only via written notice setting forth the nature of such deviation. IN the even of such rejection, we will correct the deviation and redeliver any such Hardware or Software within 30 days. Redelivery pursuant to this Section will constitute another Delivery, and the parties shall again follow the acceptance procedures set forth in this Section 10.4. Our failure to provide any Hardware or Software that materially conforms to the Documentation may constitute a breach of this Agreement, and this Section 10.4 does not limit any remedy for such breach.
- No Warranty for Data Security. You understand, acknowledge, and accept that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing, operating, or using the Services, You assume such risks. We offer no representation, warranty, or guarantee that Your Data will not be exposed or disclosed through errors or the actions of third parties. We will have no responsibility or liability for the accuracy of any data uploaded to, posted on, stored within or on the Software, Hardware, or Services by You or on Your behalf, including without limitation Your Data and any other data.
- Provided As-Is. Except as otherwise provided for in this Section 10, any Software, Hardware, Services, and Documentation provided to You by Us is provided AS IS. The limited warranties contained within this Section 10 extend only to You as the original licensee. In no event do we represent or warrant that any Software, Hardware, Services, or Documentation is or will be error free or that You will be able to reproduce, access, operate, and use any such Software, Hardware, Services, or Documentation without problems or interruption. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION 10, WE MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER HAS NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD HARMESS CUSTOMER, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, UNLESS THIS AGREEMENT SPECIFICALLY PROVIDES FOR SUCH AN INDEMNITY.
LIMITATION OF LIABILITY AND INDEMNITY.
- No Consequential or Indirect Damages: Under no circumstances, and notwithstanding any failure of the essential purpose of any remedy set forth herein, shall We, our licensors, suppliers, or affiliates, be liable to You or any third party for any consequential, incidental, indirect, exemplary, special or punitive damages, including any damages for business interruption, loss of use, data, revenue or profit, whether arising out of breach of contract, tort (including negligence), strict liability or otherwise, regardless of whether such damages were foreseeable and whether or not We were advised of the possibility of such damages, in relation to this Agreement.
- Maximum liability. In no event shall Our aggregate and cumulative liability arising out of or relating to this Agreement or any Additional Terms, whether arising out of or relating to breach of contract, tort (including negligence), or otherwise, exceed the total dollar amount paid to Us by You for the products or services giving rise to the claim. the foregoing limitations shall apply even if the Our remedies under this agreement fail of their essential purpose.
- The limitations set forth in this Section shall not apply to damages or liabilities arising from any willful misconduct by Us in performing Our obligations under this Agreement. You shall not institute any action in any form (including, without limitation, litigation or arbitration proceedings) arising out of any product, any services, this Agreement or any Additional Terms more than one year after the cause of action has arisen.
You understand, acknowledge, and accept that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that You will comply with the Export Laws and any similar laws in Your jurisdiction. You will not ship, transfer, export, or re-export the Software, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (each, an “Embargoed Country”); (b) any end user whom You know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”); or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, You are responsible for complying with any local laws in Your jurisdiction which may impact Your right to import, export, reproduce, access, operate, or use the Software. You represent and warrant that (d) you are not a citizen of, or located within, an Embargoed Country, (e) You will not use the Software for a Prohibited Use, and (f) You are not a Sanctioned Party. All rights to reproduce, access, operate, or use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement. If We have knowledge that a violation has occurred, We may be prohibited from providing the Software, Hardware, or Services, including Updates and support.
TERM AND TERMINATION.
- The initial Term of this Agreement shall commence upon execution of this Agreement and continue for three years thereafter unless otherwise agreed upon by the parties in any Additional Terms (the “Term”).
- Automatic Renewal of Subscription. The Subscription and this Agreement will be automatically renewed on an annual basis on the month and day of execution of this Agreement unless You provide Us with at least 60 days’ advance written notice of Your intent not to renew.
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach. However, termination for breach will become effective immediately upon such notice, without opportunity to cure, if the breach cannot be remedied by performance after notice of termination. (For the avoidance of doubt, non-material breaches of this Agreement may, in the aggregate, constitute material breach.
- Termination for Convenience. We may terminate this Agreement for convenience at any time and for any reason, or no reason at all. We shall provide You with at least 30 days’ advance written notice of any such Termination pursuant to this Section.
- Effect of Termination. Upon termination of this Agreement, the licenses granted in Section 2 will terminate, You shall cease all reproduction, access, operation, and use of the Software and delete all copies in Your possession or control, and each party shall promptly return any property of the other’s. The following provisions will survive termination of this Agreement: (a) any obligation of Customer to pay for Software used or services rendered before termination; (b) Sections 8, 9, 11, and 14; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Governing Law. This Agreement and any Additional Terms are governed by the State of Texas, without regard to its conflict of laws rules or principles. The Parties hereby exclude the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended.
- Jurisdiction in the United States. If Your principal place of business or primary residence is located in the United States, then all questions or disputes regarding the interpretation, performance, or enforceability of this Agreement or any Additional Terms, or the rights and remedies of the Parties hereunder, shall be brought exclusively in Texas, and each Party consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof and waives the right to change venue. Each Party further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
- Jurisdiction Outside the United States. If Your principal place of business or primary residence is located outside of the United States, then all questions or disputes regarding the interpretation, performance, or enforceability of these Term and Conditions, or the rights and remedies of the Parties hereunder, shall be resolved by binding arbitration before a single arbitrator, with such arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect on the date the proceeding is initiated. The arbitrator shall apply the substantive laws of the State of Texas, United States without giving effect to any conflict of laws rules or principles. The arbitration hearing and all related proceedings shall be conducted in Texas and in the English language. The arbitrator’s decision shall be final and non-appealable. Judgment on the award or decision rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to settle any controversy, claim or dispute by finding that a Party should be enjoined from certain actions or be compelled to undertake certain actions, and in such event a court of competent jurisdiction may enter an order enjoining and/or compelling such actions as found by the arbitrator. Except to the extent required by applicable law, the Parties agree to keep confidential the nature of the controversy, claims, and dispute submitted to arbitration, all submissions made by the Parties in connection with any arbitration proceeding or hearing, and the content of the arbitration proceedings and hearings. This Section 14.3 does not limit either party’s right to provisional or ancillary remedies from a court of competent jurisdiction before, during, or after arbitration, and the exercise of any such remedy does not waive either party’s right to arbitration. Judgment on an arbitration award may be entered by any court with competent jurisdiction. Any requirement in this Agreement to pay or reimburse court costs or attorneys’ fees includes, without limitation, a requirement to reimburse costs and fees related to such arbitration. This Agreement is subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- Temporary Restraining Order. Notwithstanding anything in this Section 14 to the contrary, the Parties expressly agree that any court of competent jurisdiction may enter a temporary restraining order, an order enjoining breach of this Agreement pending a final award or further decision by the arbitrator.
- Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE WAIVER IN THE PRECEDING SENTENCE APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY.
- Class Action Waiver. NEITHER PARTY SHALL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER PROCEEDING UNDER CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY (collectively, “THIS AGREEMENT’S CLAIMS”). THIS AGREEMENTS’S CLAIMS INCLUDE, WITHOUT LIMITATION, COUNTERCLAIMS, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE PROCEEDINGS EXCLUDED ABOVE IN THIS SECTION __ INCLUDE, WITHOUT LIMITATION, CLASS-WIDE ARBITRATION AND PRIVATE ATTORNEY-GENERAL ACTIONS.
- Force Majeure. No party will be responsible for and no liability shall result to any party for any delays which result from any circumstances beyond its reasonable control including, but not limited to, product or service unavailability, systems or Internet congestion or performance, equipment failure, material changes in costs, fire, severe weather conditions, failure of power, labor problems, acts of war or hostilities, terrorism, embargo, acts of God or acts or laws of any government or agency. In the event of such delay, We may elect to discontinue provision of the Software, Documentation, Hardware, or Services, or any other product or service or to extend the time for performance for a period equal to the time lost by reason of the delay. Any delivery dates, completion dates and any other purported deadlines are estimates only.
- Entire Agreement. This Agreement, together with the Additional Terms, constitutes the sole and entire agreement between the parties and supersedes any and all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, to the extent they relate in any way to the subject matter hereof.
- We may from time to time make changes to this Agreement or the Additional Terms, as We see fit, without notice to You. No modification or amendment will be binding upon us unless in a written instrument signed by Our duly authorized representative or made available to You by Us.
- If any provision of this Agreement or any Additional Terms is held by a court, arbitrator, or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
- Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Electronic Records. In connection with this Agreement and any Additional Terms, You may be entitled to receive certain records from Us or Our affiliates, such as contracts, notices and communications, in writing. To facilitate Your use of the Software, Documentation, and Support Services, You give Us permission to provide these records to You electronically.
- This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
- Conflicts Among Additional Terms. In case of conflict with any Additional Terms, the main body of this Agreement will govern. No Additional Terms or other attachments, addendums, or exhibits to this Agreement, including without limitation those executed after this main body of this Agreement, will be construed to amend this main body unless it specifically states its intent to “amend” this Agreement, under a clause or section entitled “Amendment,” and cites the section or sections amended. Such an amendment executed through any Additional Terms will operate only with respect to the subject matter of such Additional Terms.
- Titles and Headings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.