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The term ‘SkyDox’ or ‘us’ or ‘we’ refers to the owner of the website whose registered office is No.1G Network Point, Range Road, Windrush Park, Witney, Oxfordshire, OX29 0YN, U.K.. The term ‘you’ refers to the user or viewer of our website.
SkyDox Ltd, December 2011, All rights reserved.
MASTER SERVICE & SUBSCRIPTION AGREEMENT. YOUR 30-DAY FREE TRIAL OF SKYDOX SERVICES IS GOVERNED BY THIS MASTER SERVICE & SUBSCRIPTION AGREEMENT (THE AGREEMENT). IF YOU REGISTER FOR, DOWNLOAD OR PURCHASE OUR ONLINE SERVICES MOBILE SERVICES OR DESKTOP COMPONENTS (COLLECTIVELY, THE "SERVICES"), YOU UNDERSTAND THAT THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, OR TO MONITOR THEIR FUNCTIONALITY, PERFORMANCE, AVAILABILITY OR ANY OTHER COMPETITIVE OR BENCHMARKING-RELATED PURPOSES.BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT GOVERNING YOUR USE OF SKYDOX SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
2. 30-Day Free TrialWe will make the Services available to You on a trial basis, free of charge, until the earlier of (a) sixty days after Your acceptance of this Agreement or (b) the start date of Services ordered and purchased by You. Additional trial terms and conditions may be included within the trial registration process and are incorporated into this Agreement by reference so are legally binding. It is Your responsibility to review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. NOTWITHSTANDING THE WARRANTIES AND DISCLAIMERS IN SECTION 8, DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY. ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES OR EXPORT SUCH DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD.
3. Purchased Services3.1 User Subscriptions. Unless otherwise specified in the applicable Order Form, (a) Services are purchased on a per User subscription basis and may not be accessed by more than the number of Users specified in the Order Form; (b) User licenses cannot be shared or used by more than one individual User; (c) additional User subscriptions may be added during the subscription term at the same price as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added; and (d) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.3.2 Provision of Purchased Services. Subject to this Agreement and the relevant Order Forms We shall make the Purchased Services available to You during the subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
4. Use of the Services
4.1 Your registration for, or use of, the Services shall be deemed to be further or exclusive indication of your acceptance of this Agreement, including but not limited to Our privacy and security policies.
4.2 We shall: (a) provide You with use of the Purchased Services, including a desktop application for specific versions of Windows, Apple and Linux operating systems, plug-in components for Microsoft Word, Excel and PowerPoint 2007 and 2010, a browser interface, mobile browser interfaces, and data encryption, transmission, access and storage; and (b) provide You with basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (c) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during weekend hours), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), or Internet service provider failures or delays.
4.3 You shall: (a) be responsible for Users compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use of any password or account or any other known or suspected breach of security, (d) use the Services only in accordance with the User Guide and abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data, and (e) be solely responsible for obtaining the legal rights to use any Microsoft Office software or other software not covered by this Agreement but used in connection with the Service.
4.4 You shall not: (a) make the Services available for time sharing, application service provider or service bureau use; and shall not sell, resell, rent, lease, license, sub-license, transfer, assign, distribute, or in any way make the Services available to anyone other than Users, (b) attempt to gain unauthorized access to the Services or their related systems or networks, (c) modify, adapt, translate or otherwise modify the Services or create derivative works based on the Services, (d) copy, frame or mirror any part or content of the Services, (e)reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent applicable laws specifically prohibit such restriction, (f) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation, performance or integrity of the Services, (g) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services, or (h) use the Services to store or transmit Malicious Code, or to transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights.
4.5 Usage Limitations. (a) The license granted in this Agreement and your right of use of the Services will terminate immediately if You fail to comply with the terms of this Agreement. (c) The Services are subject to other limitations, including but not exclusively, limits on disk storage space and limits on the number of people who may register from your email domain to access the services as free guest users. Any such limitations are specified in the Order or the User Guide.
5. Paying for Purchased Services
5.1 User Fees. User subscription fees are calculated on the basis of monthly or annual periods that begin on the subscription start date, and each monthly or annual anniversary thereof. Fees for monthly User subscriptions added in the middle of a monthly period will be charged for that full monthly period. Fees for annual User subscriptions added in the middle of a monthly period will be charged a pro-rated amount from the beginning of that monthly period to the end of the current subscription term. You agree to pay all fees specified in all Order Forms relating to the Services. Unless otherwise specified in an Order Form, fees are quoted and payable in United States Dollars and are based on services purchased rather than actual usage. Fees paid are non-refundable and payment obligations are non-cancellable, and the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
5.2 Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document specified in an Order Form. If You provide credit card information to Us, You authorise Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.3 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in order to ensure timely payment for the Services.
5.3 Past-due Amounts. If any amounts owed by You under this or any other Order of Agreement with Us are not received on or before the due date, then at Our discretion, late interest fees may be charged at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Additionally, We may condition future subscription renewals and Order Forms on payment terms shorter than 30 days.
5.4 Suspension of Service and Acceleration. If any amounts owed by You under this or any other Order of Agreement with Us are 30 or more days overdue in the case of an invoice or purchase order, or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that they become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
5.5 Disputed Payment. If amounts owed by You are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute, Sections 5.3 and 6.4 shall not apply.5.6 Taxes. Unless otherwise stated, Our quoted fees do not include taxes, levies or duties, including but not limited to value-added, sales, use or withholding taxes as assessable by local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying any and all Taxes associated with Your purchases of our Services. If We have a legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Intellectual Property Rights
6.1 Reserved Rights. We reserve all rights, title and interest in and to the Services that are not expressly granted within this Agreement, including without limitation all related intellectual property rights in the Services and any derivative works or enhancements thereof. All rights in and to the Services not expressly granted to You in this Agreement are hereby expressly reserved and retained by Us.
6.2 Use of Feedback.
We shall have a worldwide, transferable, sub-licenseable, irrevocable, perpetual, royalty-free license to use for the purpose of enhancing the Services any suggestions, enhancement requests, recommendations or other feedback provided by You.
6.3 Ownership of Your Data. As between You and Us, You are the exclusive owner of Your Data, and You retain all rights, title and interest in and to Your Data.
6.4 Ownership of Our Marks. We are the exclusive owner of the trademarks, service marks, trade or business names, logos, domain names, other distinctive brand features and any other copyrighted material and proprietary rights associated with the Services. You are not permitted without Our express written consent to (a) register, attempt to register or assist any third party to register or attempt to register any trade mark, service mark, trade or business name, logo, domain name, other distinctive brand feature or any other copyrighted material or proprietary right associated with the Services or with Us, or to (b) remove, obscure or alter any notice of copyright, trade mark or other proprietary right notice appearing in or on any item included with the Service.
7. Privacy, Security and Confidentiality
7.1 Privacy. Our privacy and security policies, which may be updated from time to time, are available or review at www.skydox.com/privacy. You agree to receive announcements from us regarding the operation of the Services as well as marketing and other non-critical Service-related communications from time to time. If you register as a Guest user of the Services, purchase a premium edition of the Services, or register as a user under a paid company subscription, you consent to our disclosure of the fact that your company is a registered user or paying customer and the Service that you are using. You may opt-out of receiving promotional emails by following the opt-out instructions provided in those emails. You may also opt-out of receiving promotional emails and other promotional communications from us at any time by emailing firstname.lastname@example.org with your request. Opt-out requests will not apply to transactional service messages, such as security alerts and notices about your current account and services.
7.2 Website Analytics. The SkyDox website uses Google Analytics and Trovus Analytics.
7.2(b) Trovus Analytics. Trovus Analytics website service is provided by White Label Intelligence Limited. ("WLI"). Trovus Analytics uses "cookies," which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Trovus on servers in the United Kingdom. For a list of these cookies, please click here. SkyDox will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and Internet usage. SkyDox may also transfer this information to third parties where required to do so by law, or where such third parties process the information on SkyDox’s behalf. SkyDox will not associate your IP address with any other data held by SkyDox. 7,2(c) If you want to control which cookies you accept. You can configure your browser to accept all cookies or to alert you every time a cookie is offered by a website's server. Most browsers automatically accept cookies. You can set your browser option so that you will not receive cookies and you can also delete existing cookies from your browser. You may find that some parts of the site will not function properly if you have refused cookies. Most web browsers allow some control of most cookies through the browser settings. To find out more about cookies, including how to see what cookies have been set and how to manage and delete them, visit http://www.allaboutcookies.org/. Please be aware that if you do not configure your browser you will accept cookies provided by this website. How to see cookies that you have accepted. You can configure your browser to accept all cookies or to alert you every time a cookie is offered by a website's server. By using this website, you consent to the processing of data about you by SkyDox in the manner and for the purposes set out above.
7.3 Security of Your Data. Without limiting the following, We shall maintain appropriate physical, technical and administrative safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7.4 Responsibility for Your Data. We do not own any data, information or material that You submit for processing by, storage in or transmission through the Services ("Customer Data"). As between You and Us, You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
7.5 Confidential Information Is. For the purpose of this Agreement, "Confidential Information" shall include all information, (including all oral and visual information, and all information recorded in writing, or electronically, or in any other medium or by any other method or process) and whether of a commercial, financial, marketing, technical, non-technical or any other nature, which is disclosed to, or obtained by, one Party from the other, or by, or from, a third person acting on that Party's behalf, and shall include, without limitation, the terms and conditions of this Agreement and all Order Forms, any plans, proposals, design specifications, models, sketches, drawings, photographs, processes, trade secrets, know-how, information concerning research, experimental work, development, design details and specifications, engineering, procurement requirements, purchasing, manufacturing, business forecasts, sales, merchandising and marketing plans, customer lists, personnel information and all other aspects of its business or affairs, including, without limitation, its assets, liabilities, prices, profitability, plans, policies and financial position or, in any event, is such that, by its nature, the information would be accepted by a reasonable person as confidential.
7.6 Confidential Information Is Not. For the purpose of this Agreement, "Confidential Information" does NOT include information or material which was in the public domain at the time of receipt or disclosure or subsequently becomes so, other than as a result of any breach of this Agreement; is not identified in writing as being proprietary or confidential or, in the absence of such markings, is not, by its nature, such that would be considered proprietary or confidential by a reasonable person; can be demonstrated to the reasonable satisfaction of the disclosing party to have been developed by the Party in possession independently of the Confidential Information disclosed to it by the other Party; is received by the Party in possession from a third party without similar obligations of confidence and without breach of this Agreement; is approved for release by written authorisation of the disclosing Party; consists solely of generalised ideas, concepts, know-how or techniques of the industry of the Party in possession.
7.7 Specific Obligations of the Parties. Except as otherwise permitted in writing by a Disclosing Party, each Party agrees (a) to maintain such Confidential Information in confidence, and in a secure manner, and to use the same only for the Discussions and for no other purpose and in particular, but without limitation, not to make any commercial use thereof or use the same for the benefit of itself or of any third party other than pursuant to this Agreement, or such further agreement between the Parties, (b) to ensure that the Confidential Information is disclosed only to those of its employees, agents, advisors and sub-contractors who are, and, can be shown to be, connected with the Discussions and to ensure that each of those persons is aware of the Party's obligations of confidence under this Agreement and is subject to obligations of non-use and non-disclosure no less strict than those imposed herein, (c) not to copy, reproduce or reduce to writing any such Confidential Information save as may be reasonably required for the Discussions and to ensure, in respect of any such copies, reproductions or reductions to writing, that the same shall be duly identified as confidential and proprietary to the disclosing party, (d) upon request by the disclosing Party, to return to the disclosing party within 30 days, or at the option of the disclosing Party, to destroy, all items of Confidential Information, or copies, reproductions or reductions in writing thereof, (including any such Confidential Information held on the Party's computer systems), and to certify in writing compliance thereof under this provision, within 14 days of such request, (e) to maintain all confidential or proprietary markings placed upon or contained within the Confidential Information of the disclosing Party and not to obscure, remove, destroy or render illegible any such markings, (f) to notify the other party immediately upon it becoming aware of, or suspecting that there may have been a breach of confidence in respect of the Confidential Information or of any circumstances, events or happenings which may suggest that any person may have unauthorised possession, knowledge or use of the Confidential Information.
7.7 Compelled Disclosure. Nothing in this Agreement shall prohibit a Party disclosing Confidential Information of the other Party that may be required by court order or by any governmental or other regulatory authority, PROVIDED THAT, wherever possible, in advance, but in any event, as soon as reasonably practicable: (a) the Party provides the other Party with details of the nature and contents of such disclosure and evidence in writing that the disclosure is necessary, (b) the other Party is given the opportunity to discuss and agree any possible limitations or restrictions on disclosure in advance; and (c) the disclosing Party uses reasonable endeavours to obtain undertakings of confidentiality in respect of the Confidential Information from the body to whom disclosure is to be made.
8. Warranties and Disclaimers
8.1 Our Warranties to You. We warrant that (a) will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof, (b) that under normal use and circumstances the Services shall perform substantially in accordance with the User Guide, and (c) that the functionality of the Services will not be materially decreased during a subscription term. For any breach of warranties in this Section 8.1, Your exclusive remedy shall be as provided in Section 11.4 (Termination for Cause) and Section 11.5 (Refund or Payment upon Termination) below.
8.2 Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. NO CONDITIONS, WARRANTIES OR OTHER TERMS INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMITY WITH DESCRIPTION APPLY TO THE SERVICES EXCEPT TO THE EXTENT THEY ARE EXPRESSLY SET OUT IN THIS AGREEMENT. Without limiting the generality of the foregoing, We do not represent or warrant that: (a) the use of the Services will meet Your requirements or expectations or be uninterrupted, secure or error-free, (b) that any stored data will be accurate or reliable, (c) that defects will be corrected, (d) that the Services will operate in combination with any hardware, or other software, system, service or data, (e) that the Services or the servers that make the Services available are free of viruses or other harmful components, or (f) that provision of the Services will be timely or otherwise reliable.
9. Mutual Indemnification
9.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the Services as licensed hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney fees incurred by You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); (c) provide to Us all reasonable assistance, at Our expense, and (d) have not compromised or settled such claim.
9.2 Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, Your combination of the Services with any of your products, services, hardware or business processes, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party, has caused harm to a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney fees incurred by Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); (c) provide to You all reasonable assistance, at Your expense, and (d) have not compromised or settled such claim.
9.3 Exclusive Remedy. This Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.
10. Limitation of Liability
10.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST DATA, PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Term and Termination
11.1 Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2 Term of Free Trial. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period. Notifications provided during the trial period through the Service indicating the remaining number of days remaining in the free trial shall constitute notice of termination. Additionally, We may terminate a free account at any time at Our sole discretion.
11.3 Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. All User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless the Service has been discontinued or either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
11.4 Termination for Cause. Either party may terminate this Agreement (a) for cause upon 30 days written notice to the other party of an uncured material breach, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We may terminate this Agreement for cause immediately upon written notice in response to any actual or proposed change in control of You that results or would result in one of Our direct competitors directly or indirectly controlling 50% or more of You. If We terminate this Agreement for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward your password, account or any Customer Data.
11.5 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.6 Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in its native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. Not withstanding the above obligations, we reserve the right to withhold, remove and/or discard Customer Data without notice for any material breach of this agreement including failure to pay outstanding fees more than 90 days past due.
11.7 Surviving Provisions. Sections 5 (Payment for Purchased Services), 6 (Intellectual Property Rights), 7 (Privacy, Security and Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.5 (Refund or Payment upon Termination), 11.6 (Return of Your Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12. Notices, Governing Law and Jurisdiction
12.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
12.2 Agreement to Governing Law and Jurisdiction. Each party agrees that the validity, interpretation and performance of this Agreement shall be governed by the laws of England. Any dispute arising under, or in connection with this Agreement, shall be subject to the exclusive jurisdiction of the English courts to which the parties hereby submit. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act. You agree that the Website shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than England.
12.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.13. General Provisions
13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United Kingdom, the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not named on any U.K. or U.S. government list of persons or entities prohibited from receiving exports.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create an agency, partnership, franchise, joint venture, fiduciary or employment relationship between the parties.
13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right unless expressly acknowledged and agreed to by both parties in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to reflect the intentions of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
13.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as in Section 13.9, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13.9 Modification to Terms. Notwithstanding section 13.8, We reserve the right to modify the terms and conditions of this Agreement or the policies relating to the Services at any time, effective at the anniversary of your renewal term following posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Renewal and continued use of the Service after any such changes shall constitute your consent to such changes.