1.0 Definitions. For purposes of these Terms, the following terms have the following meanings:
1.1 “Confidential Information” shall include (i) the technology, software and infrastructure used by Us in connection with the provision of the Services (including Documentation) and Your Data, regardless of marking, (ii) any non-public information, whether in written, oral, graphic, electronic or any other form, including without limitation, sales, cost and other unpublished financial information, product and business plans, business projections, pricing, and marketing data, business, financial and technical information, User manuals, forecasts, analyses, software and processes, which information is marked or indicated at the time of disclosure or observation as being “Confidential” or “Proprietary,” or (iii) information which would be deemed by a reasonable person to be confidential or proprietary in nature.
1.2 “Documentation” means any user instructions, manuals or other materials that We generally provide in connection with the Services or otherwise made available by Us which describe the features, functionality and/or operation of the Services.
1.3 “Order Form” means the documents for placing orders that are entered into between You and Us from time to time.
1.4 "Services” means the Blazemark® software and any related services ordered by You under an Order Form and which are provided pursuant to these Terms.
1.5 “Subscription Term” means the period for which you have paid to use the Services specified in an Order Form.
1.6 "User" means those employees and contractors authorized by You to use the Services and who have been supplied user identifications and passwords.
1.7 “Your Data” means all electronic data or information submitted by You and Your Users in connection with the Services or which are uploaded by Us on your behalf in connection with the provision of Services.
2.1 License. Subject to these Terms and in consideration of Your payment of all applicable fees, We grant You a limited, non-exclusive, non-transferable right during the Subscription Term, to access and use the Services for Your internal business purposes. We shall use commercially reasonable efforts to make the Services available to You 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks. We may make improvements and/or changes to the Services at any time. We will use reasonable efforts to notify you of planned extended downtime at least two (2) days in advance.
2.2 Proprietary Rights. We retain all ownership and proprietary rights in and to the custom technology, software and infrastructure used to provide the Services. This includes all user interface designs, structure of the solution, scripting, code, database/domain model design -- protected by U.S.A and international copyright and trademark, and other laws.
You retain all rights in Your Data.
2.3 Your Responsibilities. You acknowledge and agree that the Services may not be accessed except by Users. You shall be solely responsible for the security of passwords issued to your Users. You are responsible for all activities that occur under User accounts.
You shall not:
You acknowledge that the competence of your Users is critical in the ability of the Services to produce accurate results. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership rights of Your Data. You agree to defend, indemnify, and hold Us harmless from and against any and all claims and liabilities, including reasonable attorneys' fees, related to or arising from:
2.4 License to Your Data. You hereby grant to Us a royalty-free, non-exclusive, non-transferable limited license to store and use Your Data, solely to the extent necessary to provide the Services to You and your Users, and to otherwise fulfill Our obligations under these Terms. We shall treat Your Data as Your Confidential Information and shall not modify Your Data or access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with providing you with support.
2.5 Transmission over Network. You understand that the operation of the Services, including Your Data, involves (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Our third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security and protection of Your Data. We will have no liability to you for any unauthorized access to or use of any of Your Data, or any corruption, deletion, destruction or loss of any of Your Data unless directly caused as a result of our breach of our obligations under these Terms.
2.6 Evaluation and Beta Terms. You may request the ability to (a) evaluate the Service or (b) have access to a preproduction or evaluation release of the Services (often labeled "beta release" or “evaluation”). You may use either of these evaluation purposes only. These Services are not suitable for production use and are provided on an "AS IS" basis. The period of any evaluation will be provided with the instructions for accessing the evaluation version of the Services, but in no event shall any evaluation be longer than 60 days.
3.1 Fees. The pricing, features and options for the Services are set forth in the Order Form. We may change Our fees and payment policies for the Services from time to time and they shall be effective on the date specified in the notice provided by Us. All fees are in U.S. Dollars and are nonrefundable except as specified herein. All fees and other charges are exclusive of all applicable federal, state, local, national, provincial or other taxes, fees, duties, tariffs or other governmental charges (“Taxes”). You will be responsible for paying any and all such Taxes (other than those based on Our net income).
3.2 Payment. All undisputed amounts due under these Terms will be paid by You in United States dollars, within thirty (30) days after invoice date or such other date specified in the Order Form. You will notify Us promptly of any disputed amounts and You will work in good faith with Us to resolve any such disputes on a timely basis.
3.3 Suspension of Services. If Your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, We reserve the right to suspend the Services provided to You, without liability to You, until such amounts are paid in full.
4.1 Limited Warranty. We warrant to You that the Services will perform substantially in accordance with the Documentation during the Subscription Term. If We fail to remedy a breach of the foregoing limited warranty within a reasonable time after receipt of Your notice, You may terminate Your use of the Services and obtain a pro-rated refund of any unused fees paid. We reserve the right to make changes to the Documentation from time to time to cure non-conformities, so long as such changes do not materially decrease the features or functions as described in the Documentation. The foregoing represents Our sole liability and Your exclusive remedy for breach of the warranty set forth in this Section 4.1. We do not warrant that the Services will be uninterrupted or free of errors, viruses, or other harmful components; nor do We make any warranty as to the results that may be obtained from Your use of the Services.
4.2 Disclaimer. EXCEPT AS EXPRESSLY STATED ABOVE, THE SERVICES ARE PROVIDED 'AS IS' AND "AS AVAILABLE", "WITH ALL FAULTS" AND WE DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR SOLE LIABILITY SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SERVICES SO THEY CONFORM TO THE DESCRIPTION IN THE DOCUMENTATION. WE ARE NOT LIABLE FOR ANY IMPROPER ACCESS, COPYING OR CORRUPTION OF INFORMATION BEFORE IT ENTERS OR ONCE IT LEAVES OUR SYSTEMS.
5.1 Indemnification by Us. We will defend You, at Our expense, for any action brought by, and will pay any settlements or judgments finally awarded in favor of, a third party against You to the extent based upon any claim that the Services, when used in accordance with its Documentation and these Terms infringe any United States copyright or trade secret right of a third party. For the avoidance of doubt, this excludes any claim not directly related to the Services or the actions of Our staff and specifically excludes any User, User activity or claims related to Your Data. In the event the use of Services is, or in Our sole discretion may be, subject to an infringement claim, then We may, at Our sole option and expense: (i) procure for You the right to continue to use such Services as set forth in these Terms, or (ii) replace or modify such Services to make them non-infringing. If We, in our sole discretion, conclude that neither alternative (i) or (ii) above is reasonably available, then We may terminate Your use of the Services and refund to You any prepaid and unused fees. The foregoing represents Your sole and exclusive remedy, and Our entire liability with respect to infringement or alleged infringement of third party intellectual property rights.
5.2 Indemnification by You. You will defend Us, at Your expense, for any action brought by, and will pay any settlements or judgments finally awarded in favor of, a third party against Us to the extent based upon any claim arising out of or related to Your Data and/or actions of Your Users.
5.3 Notice and Assistance. The indemnifying party’s obligations under this Section 5 will be contingent upon the indemnified party (i) notifying the indemnifying party promptly in writing of any claim, (ii) permitting the indemnifying party to have sole control to defend, compromise or settle such claim and, (iii) providing all reasonably available information, assistance and authority at the indemnifying party’s reasonable expense. The indemnified party may participate in, but not control, the defense or settlement of any such claim at its own expense. Neither party will settle any claim in a manner which would involve an admission of guilt or wrong-doing or would impose any obligation on the other party without the other party’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned.
6.1 General. The parties will retain in confidence all Confidential Information transmitted to the receiving party (the “Receiving Party”) by the disclosing party (the “Disclosing Party”) as provided in this Section 6. Confidential Information, including any and all copies thereof made by the Receiving Party, remains the property of the Disclosing Party. The Receiving Party will use Confidential Information received hereunder only for the purpose of exercising its rights and fulfilling its obligations under these Terms, and will use diligent efforts to prevent unauthorized disclosure of such Confidential Information to third parties. The Receiving Party will disclose Confidential Information received from Disclosing Party to the Receiving Party’s employees or consultants only if such persons have a legitimate need to have access to such information and are bound in writing by confidentiality obligations substantially similar to those set forth herein. The Receiving Party will use the same degree of care and discretion (but in any event no less than a reasonable degree of care and discretion) to avoid unauthorized disclosure or use of Confidential Information received from the Disclosing Party hereunder as the Receiving Party uses to protect its own information of a similar nature from unauthorized disclosure or use. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required by governmental or judicial order, provided the Receiving Party gives the Disclosing Party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure.
6.2 Exclusions. The Receiving Party will not have an obligation to maintain the confidentiality of information that (i) is or becomes publicly known other than by breach by the Receiving Party of these Terms; (ii) is received rightfully from a third party with no obligation of confidentiality; or (iii) is independently developed by the Receiving Party without reference to the Confidential Information provided by the Disclosing Party, as evidenced by written documentation. Upon termination of these Terms or at the end of the Subscription Term, the Receiving Party shall promptly either return or destroy all Confidential Information and, upon request, provide written certification of such return or destruction.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, DATA, USE, ANY OTHER ECONOMIC ADVANTAGE OR COST OF COVER INCURRED BY YOU AND/OR USERS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY UNDER THESE TERMS, FOR ALL CLAIMS IN THE AGGREGATE, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY YOU FOR THE SERVICES.
8.1 Term. These Terms will remain in effect during the Subscription Term unless terminated as stated herein. You may cease using the Services at any time for any reason. We may terminate the Services on thirty (30) days’ notice to You.
8.2 Termination for Cause. Either party may terminate these Terms and/or Order Forms if the other party materially breaches these Terms and fails to cure such breach within thirty (30) days after receipt of written notice. Either party may terminate these Terms and/or Order Forms immediately if the other party ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding under the Federal Bankruptcy Act or any other federal or state statute relating to insolvency or the protection of rights of creditors.
8.3 No Liability for Termination. Neither party will be responsible to the other for any costs or damages resulting from the proper termination of these Terms and/or Order Forms. Termination will not, however relieve either party of obligations incurred prior to termination.
8.4 Effect of Termination. Except as otherwise provided for in these Terms, upon termination of these Terms and/or Order Forms or upon expiration of the Subscription Term, all rights granted to You will terminate. We shall promptly delete all of Your Data from our systems. All obligations regarding confidentiality and those which by their nature are intended to survive, shall survive termination or expiration of these Terms.
9.1 Government End Users. The software, technology and Documentation used to provide the Services are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If use of the Services is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services, software and Documentation will be only those specified in these Terms.
9.3 Export Control Laws. Each party understands and acknowledges that the parties are subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain products, technology and technical data to certain countries. Both parties agree to comply with all applicable U.S. and foreign laws and regulations governing performance of their obligations and rights under these Terms.
9.4 Force Majeure. Neither party will be held liable or responsible to the other party nor be deemed to have defaulted under or breached these Terms for failure or delay in fulfilling or performing any of its obligations under these Terms (other than payments of amounts due) to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to any act of God, fire, natural disaster, accident, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances or any acts, omissions or delays in acting by any governmental authority or the other party.
9.5 Miscellaneous. These Terms will be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer use of the Services or these Terms or any rights granted hereunder, by operation of law or otherwise, without Our prior written consent, and any attempt by You to do so, without such consent, will be void. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies. All notices or approvals required or permitted under these Terms will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Order Form or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by authorized representatives of both parties. If any provision is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. These Terms are the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless We have executed a separate written agreement with You with respect to Your use of the Services. Any terms or conditions contained in Your purchase order or other ordering document that are inconsistent with or in addition to these Terms are hereby rejected by Us and will be deemed null and void. These Terms have been written in the English language and You waive any right to have these Terms written in any other language.
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