Terms and Conditions

  1. DEFINITION OF TERMS

The following terms have the following meanings set forth in this Section 1.  All capitalized terms used but not defined herein have the meaning given to them in the applicable Order.

  1. “AAA” means the American Arbitration Association (http://www.adr.org).
    1. “AAA Rules” has the meaning set forth in Section 11.9.
    2. “Agreement” means the General Terms and any Order accepted by Company, collectively.
    3. “Arbitration” has the meaning set forth in Section 11.9.
    4. “Authorized User” means a specific and unique employee, contractor, representative or agent of Customer, who is provided access to the Services or Platform.
    5. “Barrel” means Company’s proprietary Internet-connected construction barrel.
    6. “Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with the Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information shall include (a) non-public Customer information, data, Documentation, and materials, and (b) Proprietary Items.
    7. “Customer Data” has the meaning set forth in Section 4.1.
    8. “Data Safeguards” has the meaning set forth in Section 4.2.
    9. “Disclosing Party” has the meaning set forth in Section 7.
    10. “Documentation” means Company’s standard user guides and manuals relating to the Platform, including on-line help, as updated and amended from time to time.
    11. “Effective Date” means the date on which Company accepts an Order and the Agreement becomes effective.
    12. “Equipment” means the Barrel(s) and any and all related devices and equipment, including replacements thereof, provided by Company to Customer for the Services, including as further set forth on the applicable Order.
    13. “Equipment Loss” means Equipment that is stolen, lost or damaged while in the possession of Customer, its Authorized Users or any subcontractor of Customer.
    14. “Equipment Loss Fee” means the fee charged by Company and payable by Customer resulting from an Equipment Loss, which shall include US$2,500.00 per Barrel; provided, however, that the Replacement Fee will be waived for up to one (1) Barrel per year calculated from the date of the Initial Subscription Term, if Customer has committed to an Initial Subscription Term of at least six (6) months or more and is in full compliance with the Agreement, and the Equipment Loss is not the result of gross negligence or willful misconduct of Customer, its Authorized Users or any subcontractor of Customer.
    15. “Equipment Recovery Fee” means the fee charged by Company and payable by Customer that amounts to all of Company’s costs and expenses to recover Equipment that is not returned by Customer upon cancellation pursuant to Section 3.4.
    16. “FAA” means the U.S. Federal Arbitration Act, 9 U.S.C. §§1 et seq., as amended.
    17. “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, service marks, trade names, rights to use domain names, rights in get-up, goodwill and the rights to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, topography rights, rights to use and preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
    18. “IP Exclusions” has the meaning set forth in Section 9.1.
    19. “General Terms” means these General Terms and Conditions for Orders, as amended and in effect.
    20. “Order” means a completed Order Form by Customer on the form provided by Company, as signed and accepted by Company.
    21. “Permits” has the meaning set forth in Section 6.2.
    22. “Platform” means Company’s proprietary technology platform, including all related software and Equipment.
    23. “Proprietary Items” mean, collectively, the Services, Platform, Equipment, and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Platform, Equipment, or Documentation, and all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Platform, Equipment, or Documentation, of Company.
    24. “Receiving Party” has the meaning set forth in Section 7.
    25. “Unreturned Equipment Replacement Fee” means the fee charged by Company and payable by Customer resulting from an Equipment Loss, which shall include US$2,500.00 per Barrel plus Company’s costs and expenses to attempt to recover
    26. “Services” mean the subscriptions ordered by Customer under an Order, including limited access and use rights to the applicable Platform in accordance with the Documentation, Order and the Agreement.  
    27. “Subscription Term” means the duration of Customer’s right to receive, access, and use the Services and Platform, as set forth on an initial Order (the Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the applicable Order, the Initial Subscription Term shall be twelve (12) months. The Subscription Term shall automatically renew for a term that is equal to the Initial Subscription Term, unless one Party provides the other Party at least sixty (60) days written notice of its intent to not renew the Subscription Term (each a Renewal Subscription Term”).
    28. “Trial Period” means the length of time specified in an initial Order (or if not so specified, then fourteen (14) days), if at all upon Customer’s election, during which time Customer will receive the Equipment and access to the Platform for a number of Authorized Users as designated in such Order, for purposes of evaluating the Services and the Platform.  The Trial Period shall commence on the date that Customer receives the Equipment and Company activates the Services for Customer.
  2. SUBSCRIPTION RIGHTS AND SERVICES
    1. Subscription Rights; Company Obligations. Subject to the terms and conditions of the Agreement, Company shall make available to Customer and its Authorized Users on a non-exclusive and non-transferable basis during the Subscription Term the Services and Equipment and applicable functions and features in accordance with the Documentation and applicable Order(s).  Company shall provide support in accordance with its then-current policies and practices for the Services and Platform. From time to time in accordance with Company’s generally applicable policies and procedures, Company in its sole discretion shall make available and implement upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available to its other clients.
    2. Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of, and loss or damage to, the Platform, including any Equipment Loss, and notify Company promptly of any such event or circumstance, and (c) use the Services and Platform only in accordance with the Agreement, the Documentation and applicable laws and regulations for its internal business functions.
    3. Restrictions. Customer shall not (and shall not permit any Authorized User to) (a) make the Services or Platform available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (c) use the Services or Platform to violate any laws or regulations, (d) use the Services or Platform to store or transmit malicious code, (e) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part, or (f) use or reference the Services or Platform to develop a competing service or product.
    4. Trial Period.  Customer has the option to elect to undertake an initial evaluation of the Equipment and the Platform, if so elected in its initial Order.  Fees payable and associated with the Trial Period, as set forth in the Order, are non-refundable and due and payable in advance of the Trial Period by Customer and shipment of the Equipment by Company.  Company requires Customer to subscribe for at least ten (10) Authorized User subscriptions for the Services for any Trial Period.  Customer must provide written notice to Company prior to the expiration of the Trial Period of its intent to cancel the Services.  If no such notice is received by Company, the Initial Subscription Term shall commence immediately upon expiration of the Trial Period, including fee obligations of Customer, in accordance with the Order.  If Customer elects to cancel the Order during the Trial Period, Customer shall immediately make available the Equipment for collection by Company.  These General Terms apply in their entirety during the Trial Period including, without limitation and for clarification, the terms and provisions related to the Equipment, Equipment Loss, return of Equipment, the Services, the Platform, and Intellectual Property Rights.
  3. EQUIPMENT.
    1. General. Company shall deliver to Customer the Equipment in accordance with an Order.  Subject to Customer’s compliance with the Agreement, including, without limitation, payment of amounts due hereunder, Customer shall be entitled to possess and use the Equipment during the Subscription Term.  Customer will use, operate, and care for the Equipment in accordance with the Agreement and the Documentation.  Customer is responsible for keeping the Equipment in good condition and working order, ordinary wear and tear excepted, and, unless otherwise expressly provided in the Agreement, Customer shall be responsible for the cost of any and all repairs to the Equipment, including any Replacement Fees, that are the necessary due to the negligence or willful misconduct of Customer, its Authorized Users or any subcontractors of Customer.
    2. Equipment Loss. In the event of an Equipment Loss or if Equipment is not functioning properly during the Subscription Term, Company will provide Customer with replacement Equipment, provided that Customer promptly notifies Company, returns the damaged Equipment to Company as instructed by Company, and pays the Equipment Loss Fee for such replacement Equipment, as and if applicable. Without the prior written consent of Company, Customer shall not make any alterations, modifications or attachments to the Equipment. All required alterations, modifications and repairs to the Equipment shall be performed solely by Company (or at Company’s expressly appointed repair facility).
    3. Equipment Liens, Restrictions, and Ownership. Customer will not, directly or indirectly, or voluntarily or involuntarily, sell, assign, lease, sublease, rent, or transfer the Equipment to any third party or obtain or permit any lien, security interest or other encumbrance to apply to the Equipment, without obtaining Company’s prior written consent in each case.  Customer will cooperate with Company in protecting and securing Company’s rights and interest relating to the Equipment upon request and hereby grants Company a security interest in and to the Equipment and authorizes Company to file any and all such claims as Company deems necessary to protect such interest, without further notice. Subject to the rights expressly granted in the Agreement, as between the Parties, Company shall own, hold and retain all right, title and interest to the Equipment, and any and all additions, improvements, repairs, replacements or modifications thereto. Customer understands and acknowledges that it neither owns nor acquires any ownership rights in the Equipment.
    4. Return of Equipment.  Within fifteen (15) days after the expiration or termination of the Agreement, Customer shall, at its expense, return the Equipment to Company in the same condition as such Equipment was originally received by Customer, ordinary wear and tear excepted, or pay the amounts indicated in the Order.  Customer will be charged and shall pay the Equipment Recovery Fee and, if Company after reasonable commercial efforts is unable to recover the Equipment, Customer will be charged and shall pay the Unreturned Equipment Replacement Fee per Barrel for any Barrels not returned upon termination in accordance with this Section 3.4.
  4. Data
    1. Customer Data.  As between the Parties, Customer retains all of its right, title and interest in and to all data it or its Authorized Users enter into the Platform (“Customer Data”) and represents and warrants that it has obtained all consents necessary for Company to use and process the Customer Data in accordance with the Agreement and applicable law and regulations.
    2. Company Rights and Obligations. Customer hereby grants Company a royalty-free, paid-in-full license to use and process such Customer Data to provide the Services and otherwise fulfil its obligations and exercise its rights under the Agreement.  This includes the right for Company to engage third-party data processors and telecommunication, networking, and cloud providers.  Company will maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of Customer Data in its possession or control (“Data Safeguards”).  Customer Data may be stored on media or hardware containing other customer data both during and after the Subscription Term, provided such media and hardware are subject to the Data Safeguards.  Company may provide copies or access to Customer Data as required by a court order or regulatory authority.  Company may aggregate and anonymize any data or information relating to Customer Data or the use of the Services or Platform to monitor, improve, or expand the Services, Platform or Company’s commercial offerings notwithstanding anything to the contrary. As between the Parties, any such aggregated and anonymized data or information provided or processed by Company is owned by Company.  Aggregated and anonymized data will not include personally identifiable data.
    3. End of Subscription Term; Data Transfer. Upon the termination or expiration of the Agreement and subject to payment of all amounts then due and owing, Company will transfer a copy of Customer Data in Company’s possession or control to Customer within sixty (60) days following any termination or expiration (or otherwise upon Customer’s reasonable request). Company is not obligated to store any Customer Data for more than sixty (60) days following the termination or expiration of the Subscription Term but may do so for a mutually agreed storage fee payable in advance by Customer for the applicable agreed upon storage period, and subject to any additional terms in Company’s discretion to be executed and delivered by Customer. Company will delete any Customer Data in its control or possession thereafter (other than archival copies which remain subject to the Data Safeguards).
  5. FEES
    1. Fees and Expenses. In consideration for the rights and subscriptions granted to Customer under an Order, Customer shall pay to Company the fees and expenses as set forth in the Order. After the Initial Subscription Term, fees are subject to change by Company once per year thereafter, upon thirty (30) days’ notice to Customer, to the extent Company’s list prices change.  Unless otherwise provided in an Order, all such fees and expenses shall be due and payable within thirty (30) days after an invoice is issued by Company. Any portion of any fees due hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
    2. Taxes. The fees and other amounts payable by Customer to Company do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, Equipment, Platform, Documentation, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes. Customer shall directly pay any such taxes assessed, excluding only taxes based upon Company’s net income.
    3. Suspension. In the event that Customer’s account is more than thirty (30) days overdue, Company shall have the right, in addition to its remedies under the Agreement or pursuant to applicable law, to suspend Customer’s use of the Services, Equipment and Platform and/or repossess the Equipment, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.  In the event that Company exercises it right to repossess the Equipment, Customer shall make such Equipment available, or cause such Equipment to be made available, to Company within twenty-four (24) hours of receipt of written notice from Company of its intent to repossess the Equipment, and if the Equipment is no longer accessible directly by Customer on any premises where Customer utilized the Equipment, Customer shall promptly use commercially reasonable efforts to obtain an appropriate right of access in favor of Company to repossess the Equipment and shall provide Company with all related contact information and location address for such purposes.
  6. REPRESENTATIONS, WARRANTIES AND LIMITATIONS
    1. Mutual.  Each Party represents and warrants to the other Party as of the Effective Date and each Order that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and in good standing under such laws; (b) it has the corporate, company, governmental or other legal capacity, authority, and power to execute and deliver the Agreement and to perform its obligations under the Agreement, and has taken all necessary action to authorize the foregoing; (c) the execution, delivery and performance of the Agreement and its obligations hereunder and the consummation of the transactions contemplated hereby do not violate or conflict with any applicable law, any provision of its constitutional documents, any order; (d) or judgment of any court or governmental authority applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets; (e) all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to the Agreement have been obtained or submitted and are in full force and effect, and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with; (f) its obligations under the Agreement constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sought in a proceeding in equity or at law); (g) there is not pending or, to its knowledge, threatened against it or any of its affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental authority, official or any arbitrator that is likely to affect the legality, validity or enforceability against it of the Agreement or its ability to perform its obligations under the Agreement; (h) it is not relying upon any representations of the other Party other than those expressly set forth in the Agreement; (i) it has entered into the Agreement as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of the material terms and risks of the same, and is capable of assuming those risks; (j) the other Party (A) is acting solely in the capacity of an arm’s-length contractual counterparty with respect to the Agreement, (B) is not acting as a financial advisor or fiduciary or in any similar capacity with respect to the Agreement, and (C) has not given to it any assurance or guarantee as to the expected performance or result of the Agreement; and (k) it is not bound by any agreement that would preclude or hinder its execution, delivery, or performance of the Agreement.
    2. By Customer.  Customer represents and warrants that it will use the Services and Platform in accordance with applicable laws and regulations, including labor and employment laws relating to Authorized Users and its business, and that it has or has obtained any and all rights to place or have placed the Equipment on the premises where Customer places or has the Equipment placed for used in connection with the Services.  Customer further represents and warrants to Company that its Authorized Users and any subcontractors of Company will use the Services and Platform in strict adherence to the Agreement and applicable law.  Customer further represents and warrants that all permits, authorizations, and approvals (“Permits”) required for Customer to conduct its business as currently conducted and to lease and use the Equipment and deploy and operate it on the applicable premises have been obtained by Customer and are valid and in full force and effect, and that all fees and charges with respect to such Permits as of the Effective Date and any Order have been paid in full.  No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse, or limitation of any such Permits. Customer shall not enter into any sublease with respect to any item of any Equipment without Company’s prior written consent which shall be within the sole discretion of Company, and in all cases, no permitted sublease shall relieve Customer of its obligations under the Agreement, and Customer shall remain primarily liable under the Agreement for the performance of all terms hereof.
    3. Performance Warranty. Company warrants that the Services and Platform (including Equipment) shall operate as described in the then-current Documentation in all material respects during the Subscription Term.  The foregoing warranty does not apply to failures caused by Customer’s or its Authorized Users’ breach of the Agreement, negligence, misconduct, or mis-use.  Customer will timely notify Company of any known non-conformance to the foregoing warranty. Company’s only obligation under the warranty in this Section 6.2 is to correct any failure to so perform, or if such correction is not possible in a commercially reasonable timeframe and such failure is material, then Customer may elect to terminate for such uncured material breach and receive a refund of any fees paid for the specific non-conforming Services and/or Platform during the periods of non-conformance and refund any pre-paid fees for Services not provided.  This Section 6.2 sets forth Customer’s sole and exclusive remedy for a breach of this warranty.
    4.  Disclaimer. Except as expressly stated ABOVE IN THIS SECTION 6, the EQUIPMENT, Platform, SERVICES, and Documentation are provided “as is” AND “AS AVAILABLE” and Company makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference, or non-infringement. Company makes no representations or warranties, nor shall Company have any liability with respect to: (A) ANY INCORRECT OR INACCURATE DATA GENERATED IN CONNECTION WITH THE PLATFORM AND SERVICES; (B) UNAVAILABILITY OR OUTAGES; OR (C) SECURITY BREACHES OR LOST OR DISCLOSURE OF CUSTOMER DATA ARISING FROM CIRCUMSTANCES OUTSIDE COMPANY’S REASONABLE CONTROl, INCLUDING THE INTERNET OR THIRD-PARTY TELECOMMUNICATION, NETWORK OR CLOUD PROVIDERS.
    5. Limitations of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, LOSS OF PROFITS, SAVINGS OR DATA OR WORK STOPPAGE) ARISING IN CONNECTION WITH THE AGREEMENT OR THE USE OF ANY SERVICES, PLATFORM, OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S total liability under the Agreement shall under no circumstances exceed the fees actually paid by the Customer to Company during the prior twelve (12) months.  THE LIMITATIONS OF LIABILITY WILL NOT APPLY TO THIRD-PARTY CLAIMS SUBJECT TO INDEMNIFICATION, THE UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY ITEMS, OR AMOUNTS, FEES AND EXPENSES DUE AND PAYABLE TO Company UNDER THe AGREEMENT OR ANY ORDER.
  7. CONFIDENTIALITY

All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section or substantially similar requirements. Either Party may disclose the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality.

  • OWNERSHIP; INTELLECTUAL PROPERTY
    • General. All Proprietary Items provided to or accessed by Customer under the Agreement are being made available on a strictly confidential and limited use basis in accordance with the Agreement and have great commercial value to Company. The Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights in or to any Proprietary Items are transferred to Customer under the Agreement. Company reserves all rights not expressly granted by the Agreement.  
    • Title and Ownership. All right, title, and interest in and to the Proprietary Items (including all related Intellectual Property Rights and other ownership rights) are and will remain the sole and exclusive property of Company. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives through professional services or otherwise) will be solely and exclusively owned by Company. Customer hereby irrevocably assigns to Company on a perpetual, royalty-free, paid-in-full basis, any rights, title and interest, including all Intellectual Property Rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Customer or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to the Agreement or their use of the Services or Platform. Customer will execute and deliver (or cause its Authorized Users and other representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Company’s rights described above and the intent of this Section.
  • Indemnification
    • By Company. Company shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third-party claim that any use of, or access to, the Proprietary Items by Customer as expressly authorized under the Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any Intellectual Property Rights. Notwithstanding the foregoing, Company shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (a) the combination, operation, or use of the Proprietary Items with products, services, deliverables, materials, technologies, business methods or processes not furnished by Company, (b) modifications which were not made by Company, or (c) Customer’s breach of the Agreement or use of the Proprietary Items other than in accordance with the Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section 9.1, or in the event that Company believes that such a claim is likely, Company may, at its option (i) modify the Proprietary Item so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or Documentation, (ii) obtain a license to the applicable third-party intellectual property, or (iii) terminate the Agreement (or the applicable Orders) on written notice to Customer and refund to Customer any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Company’s entire liability and Customer’s sole remedy for any infringement or misappropriation.
    • By Customer. Customer shall defend, indemnify, hold Company harmless from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of (a) any third-party claim resulting from or relating to the IP Exclusions, (b) Customer’s breach of its representations or warranties in the Agreement, (c) Customer’s relationship with its Authorized Users (including claims for lost wages or employment practices), (d) Equipment Loss that is the result of Customer’s or its Authorized Users, or its any of Customer’s subcontractor’s negligence or willful misconduct, and (e) any events which give rise to Company exercising its repossession rights related to Equipment as set forth in these General Terms, including any and all collection and recovery costs.
    • Procedures.  The foregoing indemnification obligations are conditions upon the indemnified party providing (a) prompt written notice of such claim to the indemnifying party, (b) authority to control and direct the defense and/or settlement of such claim, and (c) such information and assistance as reasonably requested by the indemnifying party in connection with such defense and/or settlement. In any action for which the indemnifying party provides defense on behalf of the indemnified party, the indemnifying party may participate in such defense at its own expense by counsel of its choice.
  • TERMINATION
    • Termination for Cause or Bankruptcy.  Either Party may terminate the Agreement (including any or all Orders forming a part of the Agreement) immediately on giving notice in writing to the other Party if the other Party (a) commits a material breach and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach, (b) files for bankruptcy, (c) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, (d) makes an assignment for the benefit of all or substantially all of its creditors, or (e) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.
    • Orders.  Orders will be terminated if the Agreement is terminated or as otherwise provided in the applicable Order.  The Agreement will be deemed terminated if there are no active Orders or all Subscription Terms have expired or terminated.
    • Effect of Termination.  Upon any termination or expiration of the Agreement, whether under this Section 10 or otherwise, Company shall perform its Customer Data transfer obligations under Section 4.3 and Customer shall (a) discontinue all access and use of all Proprietary Items, (b) promptly return to Company the Equipment and all copies of the Documentation and any other Proprietary Items then in Customer’s possession or control, and (c) give written notice to Company certifying that all copies of  Proprietary Items have been permanently deleted or returned. Customer shall remain liable for all payments due to Company with respect to the period ending on the date of termination.  For any termination other than a termination for good cause by Customer in accordance with Section 10.1, the balance of all remaining subscription fees relating to the then current Subscription Term will be due and payable. The provisions of Sections 2.3, 3.5, 4, 5, 6.3, 6.4, 7, 8, 9, 10.3, and 11 shall survive any termination or expiration of the Agreement as well as any other disclaimers or provisions that contemplate survival.
  • OTHER PROVISIONS
    • Notice. All notices, consents and other communications under or regarding the Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
    • Assignment.  The Agreement shall bind, benefit and be enforceable by and against Company and Customer and, to the extent permitted hereby, their respective successors and assigns.  Except as otherwise provided below, neither Party may assign any of its rights under the Agreement, and any attempt at such assignment will be void without the other Party’s prior written consent, which consent will not be unreasonably withheld.  Company may assign the Agreement in connection with any merger, reorganization, acquisition or sale of all or substantially all of its asset or stock without Customer’s consent.  If Customer is subject to a merger, reorganization, acquisition or sale of all or substantially all of its asset or stock, Company will consent to such assignment if (a) the proposed assignee’s use of the Services and Platform does not materially change the usage of the Service or Platform prior to such assignment or if such assignee agrees to pay a reasonable fee for any increased usage based on Company’s then current pricing, (b) Customer is in compliance with the Agreement, and (c) such proposed assignee’s credit rating is equal to or better than Customers.
    • Export Laws and Use Outside of the United States. Customer shall comply with the export related laws and regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority.
    • Relationship. The relationship between the Parties under the Agreement is that of independent contractors and not partners, joint venturers or agents.
    • Entire Understanding. The Agreement, which includes and incorporates Orders, attachments, and any other schedules, exhibits and addenda attached to it, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of the Agreement. In the event of any conflict between these General Terms and an Order, the Order shall govern.
    • Modification and Waiver. No modification of the Agreement, and no waiver of any breach of the Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. The Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of the Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of the Agreement.
    • Severability. If any portion of any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from the Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of the Agreement will not be affected or impaired, and (c) the Agreement will be amended in order to effectuate, to the maximum extent allowable by law, the original intent of such provision.
    • Governing Law. The Agreement will be governed by the laws of the State of Florida, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. In the event of a dispute, the parties submit to the exclusive jurisdiction of the Federal and state courts sitting in Miami, Florida.
    • Equitable Remedies.  Customer acknowledges that the Services and Platform provided by Company under this Agreement is proprietary and Company has legitimate business interests in protecting Proprietary Items to the fullest extent of applicable law, and acknowledges and agrees that (a) a breach or threatened breach by Customer of any of its obligations under the Agreement would give rise to irreparable harm to Company for which monetary damages would not be an adequate remedy, and (b) if a breach or a threatened breach by Customer of any such obligations occurs, Company will, in addition to any and all other rights and remedies that may be available to it at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement (i) to post a bond or other security, or (ii) to prove actual damages or that monetary damages will not afford an adequate remedy. Customer agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in each case, consistent with the terms of this Section 11.10.
    • Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of the Agreement due to any failure to perform its obligations under the Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.

Use of Customer’s Name. Customer hereby authorizes Company to use Customer’s name in any routine list of Company