Master Subscription Agreement
Legal Terms of Service
This Master Subscription Agreement (“Agreement”) contains the terms and conditions that govern acquisition, use, and access to the services of Spinbackup by you, partners,and end-users, whether in connection with a paid or a free trial subscription to the services.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, BY CLICKING “I Accept,” “Sign up” or a similar button; BY USING FREE OR PAID SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT 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 THESE SERVICES.
You may not access Our Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access Our Services for purposes of monitoring their availability, performance, functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 23, 2018. It is effective between You and Us as of the earlier of: (a) the date You accept this Agreement or (b) the date You first access or otherwise use Our Services.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement’ means this Master Subscription Agreement.
“We”, “Us”, “Our” means Spinbackup, Inc.
“You” or “Your” means the person accepting this Agreement, or the company (or other legal entity) for which this person is accepting this Agreement
“Malicious Code” means the harmful applications, files, scripts or programs, like ransomware, worms or Trojan viruses.
“Order Form” means an ordering document or a confirmation page specifying the Services purchased and provided hereunder between You and Us or Reseller from time to time.
“Purchased Services” means the Services provided by Us and purchased by You under Order Form or as a part of a free trial period.
“Reseller” means one of Our authorized partners who has an authority to sell you Services.
“Services” means the online products and services provided by Us via https://spinbackup.com/ and ordered by You as a part of a free trial or under an Order Form.
“Subscription Term” means the period of time during which Users can use the Service according to an Order Form with included renewals or extensions.
“Third-Party Applications” means a web-based or offline software application that is provided by You or a third party and integrates with one or more of the Services.
"User Guide" means the online documentation for the Services, accessible via https://kb.spinbackup.com/. We reserve Our right to modify, update and change this documentation from time to time. You confirm that you had the opportunity to review the documentation during the trial period described in Section 2 (Free Trial) below.
“Users” means individuals or specified technical accounts that have an authority approved by You to use our Service, for whom the Services subscription is purchased and who have been supplied identifications and passwords. The list of Users may include Your employees as well as the third-party persons, like agents, contractors or consultants.
“Your Data” means all information uploaded or collected to the Services for You or by You, processed in the process of Your use of the Services.
By registering for a free trial on Our website, We will provide You an access to the Services on a trial basis, free of charge, until the earlier of (a) the end of the free trial period which You have registered for or (b) the start date of any Purchased Services ordered by You according to an Order Form.
ANY DATA ENTERED, UPLOADED OR SUBMITTED TO OUR SERVICES BY OR FOR YOU DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST OR DELETED FROM OUR SERVERS WITHIN 30 DAYS AFTER THE TRIAL PERIOD EXPIRATION UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, OR PURCHASE UPGRADED SERVICES BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
- Provision of Purchased Services. We will make the Purchased Services available to You according to this Agreement and the relevant Order Forms within a subscription period. We will provide Our support for the Purchased Services to You at no additional charge. Despite the above, the Purchased Services may not be available due to: (a) planned system downtime (of which We shall provide a notification using the state mechanism of the Services 3 days prior), and (b) circumstances that aren’t under Our control, for example, an act of God, act of government, natural disasters, civil unrest, act of terror, strike or other labor problem (except it is involving Our employees), Internet service provider failure or delay, Third-Party Applications failure. We shall provide the Purchased Services only in accordance with applicable laws and government regulations. We reserve the right to make changes to the provided Services at any time and from time to time as a result of the Services improvement and development.
- User Subscriptions. Unless otherwise specified in the applicable to the Services Order Form, (a) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (b) additional User subscriptions may be purchased during the subscription term, and (c) 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.
- Beta Services. We may invite You to participate in testing of Beta Services at no charge from time to time. You may accept or decline any such invitation in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation and testing purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.
WE WILL HAVE NO RESPONSIBILITY FOR ANY HARM OR DAMAGE CONNECTED WITH USAGE OF A BETA SERVICE.
Use of Services
- Usage Limits. Services are subject to usage limits, including the licenses quantities and the storage volume specified in Order Forms. If You exceed a specified usage limit, We reserve the right to provide the Services in the limited way so that it conforms to that limit. If You are unable or unwilling to abide by a specified usage limit, You would need to execute an Order Form for additional quantities of the applicable Services, and pay in accordance with Section 6.2 (Invoicing and Payment)
- Your Responsibilities. You shall (a) be responsible for Usersʼ compliance with this Agreement and for behavior and actions that occur through your Users’ use of Our Services, (b) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the ways by which You acquired Your Data, (c) use all applicable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the User Guide and applicable laws and government regulations.
You shall not (a) make the Services available to anyone other than You or Your Users, (b) sell, resell, license, sublicense, rent or lease the Services, (c) use the Services to store or process illegal, libelous, or otherwise unlawful or tortious material, or to store or process material in violation of third-party privacy rights, (d) use the Services to store or process Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) access the Services to build a competitive analogue of the Services or copy any part of the Services (feature, solution, framework, etc.), or (h) use reverse engineering to any part of the Services.
The Services contain features designed to interoperate with Third-Party Applications. To use such features, Third-Party Providers shall grant you access to Third-Party Applications, and You shall grant Us access to Your account(s) on the Third-Party Applications. If the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
Fees and Payment for Purchased Services
- Fees. You shall pay all fees in accordance with all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (a) fees are quoted and payable in United States dollars (b) fees are based on purchased quantities of the Services (the number of licenses or the storage volume) and not actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of purchased licenses cannot be decreased during the current active subscription term stated on the Order Form.
- Invoicing and Payment. You shall pay all fees or charges to your account in accordance with the Order Form at the time a fee or charge is due and payable. Payments may be made annually or monthly depending on the subscription chosen by You. You are consistent for paying for all requested User licenses ordered for the entire license term, whether or not such User licenses are used. We reserve the right to modify the Services fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. You shall provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term. Such charges will be made in advance, either annually or monthly depending on the subscription chosen by You. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. All pricing terms stated on the Order Form are confidential, and you acknowledge not to disclose them to any third party.
- Overdue Charges. If any charges are not received from You by the due date, then We may consider making future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
- Suspension of Service and Acceleration. If any fee owed by You under this or any other agreement for Purchased Services is thirty (30) or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Purchased Services to You until such amounts are paid in full. We will give You at least a 10 days prior notice by email before suspending Purchased Services by You.
- Payment Disputes. We will not use Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if there is a reasonable dispute about the applicable charges and You are cooperating diligently to resolve the dispute.
- Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, accessible by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the 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. For clarity, We are solely responsible for taxes assessable against it based on Our income, property, and employees.
- Purchases through Resellers. If You purchased the Services through a Reseller, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be described in Your agreement directly with a Reseller and such payment-related terms will govern any conflicting terms set forth in this Section 6.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
- Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
- Suggestions. You acknowledge that We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any suggestions, enhancement requests, reviews, or other feedback provided to us relating to the operation of Our Services.
- Use of Statistical Data. We own the statistical usage data derived from the operation of the Service, including data regarding web applications utilized in connection with the Service, configurations, log data, and the performance results for the Service (“Usage Data”). Nothing herein shall be construed as prohibiting Us from utilizing the Usage Data to optimize and improve the Service or otherwise operate Our business; provided that if We provide Usage Data to third parties, such Usage Data shall be depersonalized and presented in the aggregate so that it will not disclose the identity of You or any User(s) to any third party
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
- Protection of Your Data. In addition to the above, We shall protect the security, confidentiality and integrity of Your Data by performing appropriate administrative, physical, and technical actions. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, 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.
- Data Protection Addendum: If you are a paying subscriber to the Service, to the extent that Spinbackup processes any Personal Information (as defined in the DPA) contained in User Content that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at https://spinbackup.com/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Partyʼs Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Warranties and Disclaimers
- Our Warranties. We warrant that (a) the Services shall perform materially in accordance with the User Guide, and (b) subject to Section 5 (Third-Party Providers), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
- Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable (including applicable security breach notification law).
- 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.BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
- Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party claiming that the use of the Services as permitted hereunder infringes the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable applied attorney’s fees, You in connection with any such Claim; provided, that You (a) promptly notify Us in written form about the Claim; (b) provide Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. If We receive information about a claim related to above, We may in Our discretion and at no cost to You (a) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (b) obtain a license for Your continued use of that Service in accordance with this Agreement, or (c) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim against You arises from a Third-Party Application or Your breach of this Agreement.
- Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorneyʼs 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 defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
- Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying partyʼs sole liability to, and the indemnified partyʼs exclusive remedy against, the other party for any type of Claim described in this Section.
Limitation of Liability
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT 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.
- Collective Liability. The statements of this Section 11 shall apply to You and all of your Affiliates purchasing and using Services hereunder in the aggregate, meaning Our liability to You and/or one or more of your Affiliates for an incident or series of related incidents, collectively, will be limited to the aggregate amount paid by You and Your Affiliates as set forth in this Section 11.
Term and Termination
- Term of Agreement. This Agreement comes into force on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement and specified in the Order Form have expired or been terminated. If You decide to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
- Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. This Term may be extended in particular cases by Our sole discretion. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring subscription term; one year for annual Subscriptions or one month for monthly Subscriptions, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any 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.
- Termination. A party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (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.
- Refund or Payment upon Termination. Upon any termination for cause by You in accordance with Section 12.3 (Termination), We shall refund You any prepaid fees covering the remaining period of the subscription term within 60 days after the effective date of termination. Upon any termination for cause by Us in accordance with Section 12.3, You shall pay any unpaid fees covering the remaining period of the subscription term of all Order Forms. 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.
- Return of Your Data. Upon the effective date of termination, We shall have no obligation to maintain or provide any of Your Data and shall thereafter on Our sole discretion, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
- Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
Notices, Governing Law, and Jurisdiction
- General. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Order Form, covers the entire agreement between You and the Company and governs all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
- Notices. Spinbackup may give notice applicable to Spinbackup’s general Service customer base by means of a general notice on the Service portal, and notices specific to you by electronic mail to your e-mail address on record in your User Account or by written communication sent by first class mail or pre-paid post to your address on record in your User Account. If you have a dispute with Spinbackup, wish to provide a notice under these Master Subscription Agreement, or become subject to insolvency or other similar legal proceedings, you must promptly send written notice to Spinbackup at Spinbackup, Inc., 1426 Fillmore Street, Suite 300, San Francisco, California, USA; Attn: Legal.
- 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: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (b) 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 responsible person defined by You for Your relevant account, and in the case of billing-related notices, to the relevant billing contact designated by You.
- Agreement to Governing Law and Jurisdiction. Each party acknowledges the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
- Controlling Law and Attorneys’ Fees. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.
- Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and You will not access or use the Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
- Entire Agreement. This Agreement, including all Order Forms, is the entire agreement between You and Us regarding Your use of Services and governs all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be claimed. No modification or amendment of any provision of an Order Form will be effective unless in writing and signed by the party against whom the waiver is to be claimed. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation is governed by the terms of this Agreement, including all Order Forms. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable Order Form, (b) this Agreement, and (c) the User Guide.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- Beneficiaries and Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.
- Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by You or Us without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate Rev 032017 reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid.
- 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. 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.
- Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
- Anti-Corruption. You acknowledge that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You shall use reasonable efforts to promptly notify Us.
- Government End User. If You are representing an entity which is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), You acknowledge that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government End User Section 14.11 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
- Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.