THESE TERMS AND CONDITIONS, TOGETHER WITH THE DATA PROCESSING ADDENDUM DEFINED HEREIN, CONSTITUTE A LEGALLY BINDING AGREEMENT ("Agreement") BETWEEN [INSERT FULL CUSTOMER NAME], WHOSE PRINCIPAL OFFICE IS AT [INSERT ADDRESS] ("You" or "Your") AND BELT SOFTWARE, INC., A CORPORATION INCORPORATED IN DELWARE, UNITED STATES, AND WHOSE PRINCIPAL OFFICE IS AT 40 MONTGOMERY AVE., ARDMORE 19004, PA 190003, UNITED STATES] ("We", "Us", or "Our"). BY CLICKING 'ACCEPT', TICKING A BOX INDICATING ACCEPTANCE, ENTERING INTO AN ORDER FORM, OR OTHERWISE EXECUTING THIS AGREEMENT, YOU: (i) REPRESENT AND WARRANT THAT, IF YOU ARE ACTING AS A STAFF MEMBER OR REPRESENTATIVE OF AN ORGANIZATION, YOU HAVE THE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ORGANIZATION; AND (ii) AGREE TO BIND THAT ORGANIZATION (OR, IF YOU ARE NOT ACTING ON BEHALF OF AN ORGANIZATION, YOU AGREE TO BE BOUND) TO THIS AGREEMENT. IN CONSIDERATION OF THE COVENANTS AND OBLIGATIONS CONTAINED HEREIN, THE FOLLOWING IS AGREED:
1. Definitions and interpretation.
1.1. In this Agreement and each Order Form, unless expressly stated otherwise, capitalized expressions will bear the meanings given to them in Exhibit A (Glossary) hereto.
1.2. Unless the context requires otherwise, words in the singular will include the plural and vice versa, and words importing individuals will be deemed also to include reference to incorporated and unincorporated associations and vice versa.
1.3. Headings are included for ease of reference only and will not affect the construction of this Agreement or any Order Form.
1.4. Any reference to an "Exhibit" is to an exhibit appended hereto, and all references to this Agreement will be deemed to include the Exhibits. A reference to a "Section" is a reference to a (sub)clause of these terms and conditions.
1.5. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, consolidation, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it, and a reference to any English action, remedy, method of judicial proceeding, court, legal status, legal doctrine, legal concept, or thing will, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
1.6. Words preceding "include", "includes", or "including" will be construed without limitation by the words that follow those words.
1.7. Any reference to either party hereto will include such party's successors and assigns (immediate or otherwise).
1.8. In the event of any conflict or inconsistency between the provisions of this Agreement and those of a particular Order Form, the provisions of such Order Form will prevail.
2. This Agreement and Order Forms.
2.1. This Agreement will not oblige Us to provide You with any access or use of the Software or with any Support Services or Ancillary Services unless and until both You (or, pursuant to Section 2.4, one of Your Affiliates) and We execute and enter into a specific Order Form. Each Order Form will form a separate contract between You (or, as applicable, Your relevant Affiliate) and Us, but no Order Form will enter into force, be legally binding, or have any other effect unless: (i) it has been executed by or on behalf of both You (or, as applicable, Your relevant Affiliate) and Us; and (ii) as at the date of such execution, this Agreement is still effective and has not expired or been terminated.
2.2. Any amendment hereto agreed in accordance with Section 15.6 will be deemed to apply to all future Order Forms that You and We may, following such amendment, enter into.
2.3. By entering into any Order Form pursuant to this Agreement, each party will be deemed to have restated the warranties given in Section 9.1 as at the date of such Order Form.
2.4. Each of Your Affiliates may enter into an Order Form pursuant hereto, provided always that: (i) the liabilities and obligations of You and each such Affiliate that enters into an Order Form pursuant hereto are joint and several; and (ii) each such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto (and, in such circumstances, all references to "You" herein will be interpreted as referring to such Affiliate, all necessary changes having been made).
3. Your access to and use of the Software.
3.1. Subject always to Your full compliance with the terms of this Agreement and the relevant Order Form, and in consideration of the Subscription Fees, We grant to You (subject to the limitations stipulated in Section 3.2): (i) to the extent You will, pursuant to such Order Form, use the any part of the Software via the cloud, a nonexclusive, nontransferable, non-sublicensable, and revocable right to use and access (or, if You are an organization, for the Users) the Software as a service; and (ii) to the extent that any part of the Software will, pursuant to such Order Form, be installed on one or more devices in Your possession, custody, or control, a nonexclusive, nontransferable, non-sublicensable, and revocable license to download, install, load, execute, and (solely for the purposes of loading, execution, storage, or display of the Software) copy such Software in object-code form only (or, if You are an organization, to enable the Users to do so).
3.2. The rights and/or licenses granted under Section 3.1 will be effective and valid solely and strictly: (i) during the term of the relevant Order Form; and (ii) for internal business purposes only (and not, for clarity, for any domestic or personal use).
3.3. You will ensure compliance with the Maximum User Limit and any other usage restrictions, limitations, and conditions stipulated in the relevant Order Form and agree that We may at Our discretion monitor such compliance from time to time. You may remove one individual as a User and replace them with another individual in accordance with the terms of this Agreement and the relevant Order Form, but User accounts may not be shared or used by more than one individual at the same time for the purposes of accessing and/or using the Software. You will keep full, comprehensive, and accurate records during the term of the relevant Order Form and for a period of seven (7) calendar years thereafter to demonstrate Your compliance with this Section 3.3 and You will provide such records to Us promptly upon Our request. You will notify Us in writing as soon as You become aware of any unauthorized use of the Software by any person. Without prejudice to any other right or remedy available to Us, in the event that You are in breach of this Section 3.3, then: (i) to the fullest extent permitted by applicable law, any and all warranties given in this Agreement and/or any Order Form will cease to apply to any Software or services provided to You under or pursuant to this Agreement or such Order Form for the period during which You are in breach of this Section 3.3; and (ii) You will be liable to pay for the number of Users above the Maximum User Limit for the relevant period during which such breach occurred in accordance with Our then-current standard pricing.
3.4. If You are an organization, You will: (i) be liable for all acts, defaults, and omissions of Your Affiliates and the Users as though they were Your own; (ii) only provide Users with access to the Software via the access method provided by Us, and will not provide access to (or permit access by) anyone other than a duly authorized User; and (iii) procure that each User is aware of, and complies with, the obligations and restrictions imposed on You under this Agreement and the relevant Order Form as though they applied directly to such User (all necessary changes having been made).
3.5. To access and use the Software, You (or, where You are an organization, the Users) must ensure that any minimum user requirements or conditions stated within the Dependencies and/or the Specification are fulfilled. Such access and use will, without limitation, additionally require You to have a Microsoft 365 account, and You remain solely and fully responsible for the security of such account and its log-in credentials. We will not be liable for any Losses arising out of a failure by You to maintain the security of any Microsoft 365 account credentials.
3.6. You hereby authorize Us to access Your computer infrastructure to the extent necessary to set up and configure the Software for You. You will be fully responsible for Users' compliance with this Agreement and each Order Form. Installation of the Software, if applicable, will take place remotely.
3.7. Where You are provided with access to the Software or its functionality via an application programming interface (API) or a plugin, You acknowledge and understand that You are solely and fully responsible for ensuring that the API is compatible with Your existing network and systems. You are solely responsible for ensuring that Your systems and environment conform with any relevant minimum requirements stated within the Specification and in the particulars of the Dependencies stated in the relevant Order Form.
3.8. We may, in providing the Software or any other services under or pursuant to any Order Form, share with You and any Users certain Productivity Information. You (and any such Users) will be solely responsible for any and all decisions made with regard to what You (and such Users) choose to do or not to do in response to such Productivity Information. Subject to Section 11.1, We will have no liability to You in respect of any action or omission on Your part (or on the part of such Users) in respect of any Productivity Information provided to You or any such Users.
4. Additional services.
4.1. Where specifically and expressly provided for in the relevant Order Form, We will: (i) in consideration of the Support Fees, provide to You the Support Services in all material respects; and/or (ii) in consideration of the Ancillary Fees, provide to You the relevant Ancillary Services in all material respects.
4.2. Unless otherwise expressly stipulated in the relevant Order Form, any and all Ancillary Services and Support Services will be provided remotely or from Our own premises. To the extent any Ancillary Services or Support Services are provided at or from any other locations, You acknowledge and accept that additional charges and expenses may apply.
5. Fees and payment.
5.1. You will pay to Us the Fees (and any other charges agreed between You and Us) set out in the Order Form in accordance with this Section 5 and any payment terms specified in the Order Form, without set-off in respect of any liability on Our part.
5.2. The Software will be provided or made available to You pursuant to each Order Form on either an annual or monthly subscription basis, as stated in such Order Form. If such Order Form states that Your subscription is: (i) on a monthly basis, We will invoice You for the Subscription Fees in advance of each month of Your subscription ("Subscription Month"); or (ii) on an annual basis, We will invoice You for the Subscription Fees in advance of each twelve-month (12-month) period of Your subscription ("Subscription Year"). You will (in the manner set forth in such invoice or the relevant Order Form) pay each such invoice in full and cleared funds to Us within [thirty (30)] calendar days of Our submission to You of such invoice.
5.3. If We have not received payment by the relevant due date of any sum due to Us under an invoice submitted by Us to You under a particular Order Form, then (without prejudice to any other rights and remedies available to Us), We may without liability: (i) charge interest to You (at the rate of either [1.5% per month] or the maximum rate permitted under applicable law, whichever is greater) on the overdue sum from the due date until payment of the overdue sum (and such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and You will pay the interest together with the overdue amount); and/or (ii) suspend all or part of Our performance of Our obligations under this Agreement and such Order Form until such payment has been received by Us in full and cleared funds, or, where Your access to the Software is via the cloud, disable Your (and any and all Users' access to all or part of the Software until such payment is received by Us in full and cleared funds).
5.4. The Fees and any other charges payable by You to Us under or in connection with any Order Form are payable in the currency detailed in such Order Form and (except as expressly stated herein) are: (i) non-cancellable and non-refundable; and (ii) exclusive of any applicable value-added tax (VAT), sales tax, good or services tax, use tax, or any equivalent tax, which will be added to Our invoices at the appropriate rate(s).
5.5. You will make all payments under each Order Form without withholding or deduction of, or in respect of, any and all taxes, unless required by law. If any such withholding or deduction is required, You will, when making the payment to which the withholding or deduction relates, pay to Us such additional amount as will ensure that We receive the same total amount that We would have received if no such withholding or deduction had been required.
5.6. You will make payment of any and all Fees via a Payment Method that You authorize Us to charge in accordance with this Agreement. We may refuse to perform our obligations under this Agreement or the relevant Order Form if any payment due under such Order Form is not fully and successfully settled due to card expiration, insufficient funds, or otherwise. You acknowledge and accept that, in respect of certain Payment Methods, the issue may charge fees (such as foreign transaction fees or other fees relating to the processing of the relevant Payment Method) which will be due and payable by You, and that You may have to accept the terms and conditions of the issuer of the Payment Method or of the relevant third-party payment processor used to effect the relevant payment.
5.7. We will be entitled to increase the Fees payable by You under each Order Form in respect of each Renewal Order Term, provided that: (i) the Fees will not be increased by more than [five per cent (5%)] in respect of such Renewal Order Term; and (ii) We notify You in writing of such increase at least [forty-five (45) calendar days] prior to the commencement of such Renewal Order Term.
5.8. If a particular Order Form terminates or expires (other than due to termination by You pursuant to and in accordance with Section 6.2), You will not be entitled to any refund or discount of any Fees or other charges paid by You in respect of any period of time during which the Software (or any services provided by Us under such Order Form) is not provided or made available to You.
6. Term and termination.
6.1. This Agreement will commence on the date on which both You and We enter into it and, unless terminated earlier in accordance with its provisions, will continue in full force and effect for a period of [sixty (60) months] and will automatically expire without notice upon the expiration of such period. Each Order Form will become effective on the commencement date of the Initial Order Term (as stated in such Order Form) and will (subject to earlier termination in accordance with its provisions) continue to be effective throughout the Initial Order Term. Immediately upon the expiration of the Initial Order Term, such Order Form will (subject to earlier termination in accordance with its provisions) automatically renew without notice for a Renewal Order Term and will continue to be effective throughout such Renewal Order Term. Immediately upon the expiration of each Renewal Order Term, such Order Form will (subject to earlier termination in accordance with its provisions) automatically renew without notice for a further Renewal Order Term and will continue to be effective throughout such further Renewal Order Term.
6.2. Without affecting any other right or remedy available to it, either party hereto may terminate this Agreement and/or any Order Form with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of any other term of this Agreement or such Order Form, which breach is irremediable, or, if such breach is remediable, fails to remedy that breach within a period of twenty-eight (28) calendar days after being notified in writing to do so (and, without prejudice to the generality of the foregoing, any breach of Sections 3.2, 3.3, 5, 8, 12.5, or 15.1 will constitute a material breach for the purposes of this Section 6.2); (ii) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; (iii) the other party takes any step or action for or in connection with its entering administration, provisional liquidation, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or applying to court for or obtaining a moratorium (or, if the step or action is taken in a jurisdiction other than England and Wales, in connection with any analogous procedure in the relevant jurisdiction); or (iv) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
6.3. Subject to Section 5.8, where Your subscription to the Software is stated in a particular Order Form to be on a monthly basis, either You or We may terminate such Order Form without cause by way of giving written notice to the other party, provided always that termination of such Order Form pursuant to such notice will not take effect before: (i) the expiration of the Initial Order Term of such Order Form; or (ii) the expiration of the Subscription Month immediately following the then-current Subscription Month during which such notice is given.
6.4. Subject to Section 5.8, where Your subscription to the Software is stated in a particular Order Form to be on an annual basis, either You or We may terminate such Order Form without cause by way of giving written notice to the other party, provided always that: (i) termination of such Order Form pursuant to such notice will take effect upon the date of expiration of the Initial Order Term of such Order Form or, as applicable, the then-current Renewal Order Term (the "Intended Termination Date"); and (ii) such notice is deemed to be received by the non-terminating party, in accordance with Section 14, at least [thirty (30) calendar days] prior to the Intended Termination Date.
6.5. Without affecting any other right or remedy available to Us, We may terminate this Agreement and/or any Order Form(s) with immediate effect by giving written notice to You if: (i) You fail to pay any amount due under any Order Form on the due date for payment; (ii) You are in breach of Your obligations under Section 8; (iii) Your financial position deteriorates to such an extent that, in Our reasonable opinion, Your capability of fulfilling Your obligations under this Agreement adequately has been placed in jeopardy; or (iv) You undergo, or are within the next six (6) months to undergo, a change of ownership or Control.
6.6. Immediately upon termination or expiration of any Order Form (howsoever caused): (i) any and all rights, permissions, authorizations, and licenses granted by Us to You under such Order Form (including without limitation those granted under Section 3.1) will cease to have effect and will immediately terminate without notice (and, accordingly, You will cease to access or make any use of the Software pursuant to such Order Form); (ii) the license granted by You to Us in Section 7.4 will cease to have effect and will immediately terminate without notice (but, for clarity, the license granted in Section 7.5 will survive and continue to be effective); (iii) We will cease to provide and make available the Software and any and all services that We have agreed to provide under or in connection with such Order Form; (iv) each Disclosing Party will destroy and irretrievably and securely erase and delete any and all materials (including without limitation any electronic copies in such Disclosing Party's possession, custody, or control) containing the Confidential Information of the Receiving Party, unless it requires such Confidential Information in order to perform its obligations or exercise its rights under any other Order Form that is still ongoing as at the date of such termination; (v) any provision of such Order Form that expressly or by implication is intended to come into or continue in force on or after such termination or expiration will survive and continue in full force and effect; and (vi) You will irretrievably and securely erase (and, if applicable, remove and uninstall) any and all copies of the Software (and any related components and any documentation in relation thereto provided or made available by Us) from all computers, devices, networks, and systems under Your possession, custody, or control, and You will certify promptly thereafter to Us in writing that You have done so.
6.7. Termination or expiration of any Order Form will not affect this Agreement or any other ongoing Order Forms.
6.8. Termination of this Agreement alone (without specific termination of a particular Order Form) will not cause any ongoing Order Form to terminate, and any such ongoing Order Form will (subject to termination or expiration thereof in accordance with its provisions) continue in full force and effect and will continue to be governed by the terms of this Agreement as fully as if this Agreement were still in force.
6.9. Termination or expiration of this Agreement or any Order Form will not affect any rights, remedies, obligations, or liabilities of either party that have accrued up to the date of such termination or expiration, including the right to claim damages in respect of any breach of this Agreement (or, as applicable, such Order Form) that existed at or before the date of such termination or expiration. Without prejudice to the generality of the foregoing, such termination or expiration will not affect Our right to receive any sums due and payable by You to Us under such Order Form.
7. Proprietary rights.
7.1. You acknowledge and agree that all rights (including without limitation Intellectual Property Rights), title, and interest in and to the Software are owned by and will remain owned by Us (or, as applicable, Our licensors). Except as expressly specified herein, You are granted no right, title, interest, or license under this Agreement or any Order Form, directly or indirectly, in or to any part of the Software.
7.2. You retain all rights, title, and interest in and to Your Data and Confidential Information. You will own all rights, title, and interest in any Output.
7.3. You and the Users may be able to store or transmit Your Data using the Software and the Software may interact with Your own systems and third-party software used by You and the Users.
7.4. You hereby grant to Us (solely for the duration of the term of each Order Form) a nonexclusive, worldwide, irrevocable, royalty-free, and fully paid-up license for Us (and each of Our direct and indirect subcontractors) to access, use, analyze, scan, process, copy, and otherwise utilize Your Data to the extent necessary to perform Our obligations and/or exercise Our rights under such Order Form and this Agreement.
7.5. Without prejudice to Our obligations under Section 12, You additionally grant to Us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, and fully paid-up license for Us (and each of Our direct and indirect subcontractors) to access, use, analyze, scan, process, copy, and otherwise utilize the Outputs in order to perform Our obligations and/or exercise Our rights under any Order Form and this Agreement or to develop, design make, produce, generate, create, devise, build, conceptualize, effect, and/or implement Improvements and exercise our rights under (and fully benefit from the provisions of) Section 7.6.
7.6. We will absolutely own any and all rights and title (which will vest automatically in Us) in and to any modifications, adaptations, developments, or any derivative works of or to the Software resulting from Your or any User's use of or access to the Software ("Improvements") and in and to the Derived Data. If, by operation of law or otherwise, the foregoing is not effective, We will have all exclusive rights of use and exploitation in the Improvements and the Derived Data unlimited as to time, territory, and exploitation method and without charge to Us or further compensation to You or any third party.
7.7. We may use and exploit any such feedback and suggestions for improvement relating to the Software that You or any Users provide to Us without charge or limitation. You and We both acknowledge and agree that We may, without charge or limitation, use any Outputs to improve or enhance the Software, subject to Our compliance with Sections 12 and 13.
7.8. We will defend You against any third-party claim that Your use of the Software in accordance with this Agreement and the relevant Order Form infringes any third-party Intellectual Property Right and, subject always to Section 11.3, will indemnify You from and against any damages suffered or incurred by You and which are finally awarded by a court of competent jurisdiction or required to be paid under the terms of a settlement of any such third-party claim, provided that: (i) We are given prompt written notice of such claim by You, which notice will set forth all relevant details and particulars of such claim in reasonably comprehensive detail; (ii) You provide Us (at Our reasonable expense) with reasonable co-operation and assistance in the defense and settlement of such claim; (iii) We are given sole authority to defend or settle such claim; (iv) You and Your staff and representatives make no admission of liability or fault either on Your or Our behalf; (v) You use Your best efforts to mitigate such damages (and any other related Losses); and (vi) in the event We undertake any of the remedial actions described in Section 7.9, You will (and will ensure that all Users will), immediately upon Us taking such action, cease to use any part of the Software that is the subject of the relevant third-party claim.
7.9. In the defense or settlement of any claim pursuant to Section 7.8, We may at Our sole and absolute discretion (and Our own expense) either: (i) procure for You the right to continue using the Software in the manner contemplated by this Agreement and the relevant Order Form; or (ii) replace or modify the Software so that it becomes non-infringing. Alternatively, where the foregoing remedies stipulated in subsections (i) and (ii) of this Section 7.9 are not achievable through our commercially reasonable efforts, We may in such circumstances terminate the relevant Order Form(s) by providing written notice to You (such notice having immediate effect) and promptly thereafter refund to You a pro-rated portion of any Subscription Fees already paid by You to Us corresponding to the unused period of Your subscription.
7.10. Subject to Section 11.1, We will not in any circumstances have any liability (including in respect of the indemnity provided under Section 7.8) if the alleged infringement is based in whole or in part on: (i) any modification of the Software or any services (or any part thereof) by anyone other than Us; (ii) Your or any User's use, access, or installation of the Software otherwise than in accordance with this Agreement and the relevant Order Form, or in a manner contrary to the reasonable instructions given to You by Us; (iii) Your or any User's access or use of the Software after notice of the alleged or actual infringement from Us or any third party; (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred; (v) Your Data; (vi) any breach of this Agreement or the relevant Order Form by You or Your deliberate default, negligence or gross negligence, or willful misconduct; (vii) access or use of the Software by anyone other than You, Us, or a User; (viii) any specific feature or modification to the Software provided by Us at Your request; or (ix) any third-party components or elements of the Software constituting Open-Source Software.
7.11. Subject to Section 11.1, the provisions of Sections 7.8 to 7.10 inclusive set out Your sole and exclusive remedies (howsoever arising, including in contract, tort, negligence or otherwise) for any claim that Your (or any User's) access and/or use of the Software in accordance with this Agreement and the relevant Order Form infringes any third-party Intellectual Property Rights.
7.12. You will defend Us and hold Us harmless against, and fully indemnify Us (and keep Us fully indemnified) from and against any and all Losses that We incur or suffer in respect of any third-party claim relating to: (i) Your Data (or Our access, use, analysis, scanning, processing, copying, or other utilization thereof pursuant to Section 7.4); or (ii) any breach by You of Sections 3, 7, or 8, provided that: (A) You are given prompt notice of such claim; (B) We provide (at Your expense) reasonable co-operation to You in the defense and settlement of such claim; (C) You are given sole authority to defend or settle the claim; (D) We make no admission of liability or fault either on Your or Our behalf; and (E) such Losses do not directly result from Our willful misconduct or deliberate default.
You will not: (i) attempt to reverse-compile, disassemble, reverse-engineer, translate or convert, or otherwise reduce to human-perceivable form all or any part of the Software (including its object code and source code) except as may be allowed by any applicable law which is incapable of exclusion by agreement between You and Us; (ii) license, sell, resell, transfer, rent, lease, distribute, exploit, or otherwise or otherwise deal in or encumber the Software or make the Software available to anyone other than You or the Users; (iii) use any part of the Software to store or transmit material that is infringing, defamatory, malicious, abusive, menacing, seditious, pornographic, blasphemous, obscene, discriminatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, or otherwise unlawful, illegal, or tortious, or to store or transmit material in violation of third-party privacy rights or Intellectual Property Rights; (iv) use the Software to send spam or otherwise duplicative or unsolicited messages in violation of applicable law; or (v) copy, modify, transmit, distribute, frame, or mirror any Software in any form or media or by any means; (vi) use the Software to store or transmit malicious code, malware, or viruses, or use the Software in any way that is unlawful, illegal, or fraudulent; (vii) interfere with, damage, or disrupt the integrity or performance of the Software or third-party data; (viii) attempt to gain or assist third parties to gain unauthorized access to the Software or Our (or Our Affiliates') systems or networks; (ix) access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (x) permit any part of the Software to be integrated with any third-party product without Our express prior written consent (such consent being at Our sole and absolute discretion); (xi) use, copy, modify, adapt, correct errors, or create derivative works from, any part of the Software except as expressly permitted herein; or (xii) attempt to circumvent or interfere with any security features of the Software.
9. Warranties and disclaimers.
9.1. You and We each both warrant: (i) to have full right, title, and authority to enter into this Agreement (and each Order Form) and to perform the relevant obligations thereunder; and (ii) to be validly incorporated, organized, and subsisting in accordance with the laws of the relevant place of incorporation.
9.2. Subject to Section 9.3, We warrant that the Software will operate materially in accordance with the Specification when You (and the Users) use it fully in accordance with this Agreement and the relevant Order Form and Our reasonable instructions and under normal use and normal circumstances during the term of such Order Form.
9.3. To the extent that the Software is provided to You under a particular Order Form as an on-premises solution and not as a service via the cloud, the warranty contained in Section 9.2 will be limited to the first ninety (90) calendar days of the term of such Order Form. You acknowledge and accept that the warranty contained in Section 9.2 will not apply if: (i) You do not promptly notify Us of any non-conformance of the Software with the description thereof provided by Us to You at the date of such Order Form; (ii) You (or any User) fails to access or use the Software in accordance with Our reasonable instructions or fails to meet the minimum specifications communicated by Us to You as at the date of such Order Form; (iii) You (or any User) accesses or uses the Software (or any part thereof) in a manner that breaches this Agreement or such Order Form; (iv) You (or any User) uses the Software (or any part thereof) with other software or services or on equipment with which it is incompatible (unless We had beforehand and in writing recommended or required the use of that other software or service or equipment); (v) the relevant non-conformance is the result of any act by any third party (including without limitation hacking or the introduction of any virus or malicious code); (vi) You do not, or a User does not, implement any update to (or install a new version of) the Software made available by Us to You at no charge to You promptly upon Us making such updates available to You; or (vii) You (or any Users) are not using the latest version of the Software.
9.4. In the event of any breach of the warranty contained in Section 9.2, We will at Our sole and absolute discretion either: (i) use commercially reasonable efforts to repair or replace the defective part(s) of the Software within a reasonable time to enable performance and operation of the Software substantially in accordance with this Agreement; or (ii) irrespective of whether or not We have first attempted to repair or replace such defective part(s) of the Software, terminate this Agreement and any Order Form(s) by way of written notice to You (such notice having immediate effect) and promptly following such termination refund to You a pro-rated portion of the Subscription Fees already paid by You to Us corresponding to the period comprising both the duration of the relevant breach of warranty and any unused period of Your subscription to the Software. Notwithstanding anything to the contrary in this Agreement or in any Order Form, and to the fullest extent permitted by applicable law, the remedies set forth in this Section 9.4 will be Your sole and exclusive remedies (and Our entire liability) in respect of any breach of the warranty contained in Section 9.2 (however arising, whether in contract, negligence, or otherwise).
9.5. SAVE AS EXPRESSLY STATED IN SECTION 9.2, THE SOFTWARE, THE SUPPORT SERVICES, AND THE ANCILLARY SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 11.1), WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES RELATING TO THE SOFTWARE, THE ANCILLARY SERVICES, AND/OR THE SUPPORT SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THAT ANY PARTICULAR RESULT WILL BE ATTAINED AT ALL OR BY A PARTICULAR DATE. NO ADVICE OR INFORMATION (WHETHER ORAL OR WRITTEN) OBTAINED FROM US (INCUDING WITHOUT LIMITATION ANY PRODUCTIVITY INFORMATION) OR ANY THIRD PARTY WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
9.6. WITHOUT PREJUDICE TO SECTION 9.5, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DO NOT REPRESENT OR WARRANT THAT: (i) YOUR USE OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS; OR THAT (ii) YOUR USE OF OR ACCESS TO THE SOFTWARE DURING THE PREVIEW PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, DEFECTS, OR BUGS OR THAT ANY ERRORS, DEFECTS, OR BUGS WILL BE CORRECTED.
9.7. YOU ADDITIONALLY ACKNOWLEDGE AND ACCEPT THAT: (i) ANY ANALYSIS AND PRODUCTIVITY INFORMATION PRODUCED BY THE SOFTWARE RELIES ON LEARNING FROM HISTORICAL EMAIL DATA AND PREVIOUSLY TYPICAL PATTERNS AND BEHAVIORS IN RELATION TO THE SENDING OF EMAILS AND DOES NOT REFLECT ALL EMAIL DATA OR ALL RECENT OR EMERGING PATTERNS AND BEHAVIORS; (ii) THE INFORMATION GENERATED BY THE SOFTWARE (INCLUDING WITHOUT LIMITATION ANY PRODUCTIVITY INFORMATION) IS INTENDED SOLELY TO ASSIST YOU AND THE USERS IN MAKING YOUR AND THEIR OWN INFORMED DECISIONS CONCERNING THE IMPORTANCE OF EMAILS AND THE SOFTWARE IS NOT A SUBSTITUTE FOR YOUR (AND YOUR USERS') OWN JUDGMENT IN DETERMINING HOW AND WHETHER AN EMAIL SHOULD BE PRIORITIZED OR DEALT WITH. YOU WILL BE SOLELY AND FULLY RESPONSIBLE FOR ANY USE THAT YOUR OR THE USERS MAKE OF SUCH INFORMATION AND/OR GENERATED BY THE SOFTWARE; AND (iii) THE PERFORMANCE OF THE SOFTWARE ENTIRELY DEPENDS ON THE ACCESSIBILITY AND QUALITY OF THE INFORMATION THAT YOU MAKE AVAILABLE TO US AND/OR VIA THE SOFTWARE (AND, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL LIABILITY TO YOU PERTAINING TO THE ACCURACY OF ANY OUTPUT OF THE SOFTWARE OR YOUR INTERPRETATION OF ANY OUTPUT, OR FOR ANY FAILURE OF THE SOFTWARE TO ACCESS ANY INFORMATION WHICH WAS NOT THUS MADE AVAILABLE).
9.8. To the extent that Your access to the Software is made available by the use of third parties and/or third-party plug-ins or application programming interfaces (APIs), including but not limited to those made available by Microsoft to access (among other products and services) Microsoft Outlook, Microsoft Office products, or Microsoft Teams, We will (to the fullest extent permitted by applicable law) have no liability for the performance of those third-party plug-ins or APIs or their compatibility with the Software.
9.9. To the extent that Your access to the Software is via the cloud, You acknowledge and accept that the availability of the Software to You and the Users may be subject to delays, interruptions, errors, or other problems resulting from use of the Internet or public electronic communications networks used by You, Us, or third parties. You hereby acknowledge and accept that such risks are inherent in cloud services and that We will (subject to Section 11.1) have no liability for any such delays, interruptions, errors, or other problems.
9.10. You acknowledge and accept that nothing under this Agreement or any Order Form will require Us to provide You with: (i) any dedicated data back-up or disaster recovery facilities (and You should at all times maintain backups of Your Data); or (ii) any services, systems, or equipment that You or any Users may require to access the Internet (and You are solely responsible for procuring access to the Internet and for all costs and expenses in connection with Internet access, communications, data transmission, and wireless or mobile charges incurred by You in connection with Your use of or access to the Software). For clarity, unless otherwise agreed with Us beforehand in writing, We will not be obliged to provide You with any assistance extracting or recovering any data whether during or after the term hereof.
10. Prior evaluation of the Software. To the extent that You have previously used or accessed the Software (or any part thereof) on the basis of beta access or testing or on the basis of a trial, evaluation, preview, pre-release, prototype, or pilot, You hereby acknowledge, understand, and accept that: (i) You are, unless otherwise agreed by Us in writing beforehand, prohibited from benefiting from any further or subsequent such use of the Software on such basis ("Preview Use") and You will not attempt to do so, and will ensure that Your staff do not attempt to do so; (ii) any agreement between You and Us in relation to such Preview Use (an "Evaluation Agreement") is, to the extent it is still effective, hereby terminated with immediate effect (notwithstanding anything to the contrary therein) and is superseded and extinguished by this Agreement; (iii) any data entered by You or Your staff into the Software (and any customizations of the Software made by Us or on Our behalf to the Software during the relevant period of such Preview Use (the "Preview Period") for Your benefit) may be permanently lost unless, prior to the end of such Preview Period, You have purchased a subscription to Software and services at least equivalent to what We had provided to You during the Preview Period; and (iv) You will not be able to transfer Your Data or any customizations made for Your benefit during the Preview Period to any service that would constitute a downgrade from that provided by Us during such Preview Period. To the extent that You have already undertaken or benefited from such Preview Use, You hereby warrant and represent that You have become familiar with the features and functions of the Software provided during the Preview Period and that You are satisfied that such Software meets Your requirements as at the date of this Agreement.
11. LIABILITY. Your attention has been drawn to this Section 11.
11.1. Nothing in this Agreement or any Order Form will limit or exclude Our liability for: (i) death or personal injury caused by Our negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any matter in respect of which it would be unlawful for Us to exclude or restrict liability.
11.2. SUBJECT TO SECTION 11.1, WE WILL NOT HAVE ANY LIABILITY WHATSOEVER (REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, OR IN ANY OTHER WAY AND WHETHER OR NOT CAUSED BY NEGLIGENCE OR MISREPRESENTATION) FOR ANY: (i) DIRECT OR INDIRECT LOSS OF (OR DAMAGE TO) PROFIT, SALES, SAVINGS, BUSINESS, OPPORTUNITY, REVENUE, TURNOVER, AGREEMENTS, OR REPUTATION; (ii) DIRECT OR INDIRECT WASTED EXPENDITURE; (iii) DIRECT OR INDIRECT LOSS OF USE OR CORRUPTION OF (OR DAMAGE TO) HARDWARE, SOFTWARE, DATA, OR INFORMATION (SAVE TO THE EXTENT THAT THE FOREGOING DOES NOT CONSTITUTE A PERSONAL DATA BREACH, IN WHICH CASE THE PROVISIONS OF THE DATA PROTECTION ADDENDUM WILL APPLY); (iv) DIRECT OR INDIRECT LOSSES ARISING OUT OF THE LAWFUL TERMINATION HEREOF; (v) ACTIONS OR INACTIONS TAKEN BY US PURSUANT TO AND IN ACCORDANCE WITH YOUR INSTRUCTIONS; OR (vi) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY LOSSES. WE WILL HAVE NO LIABILITY FOR ANY DELAY OR FAILURE TO PERFORM ANY OF OUR OBLIGATIONS IF SUCH FAILURE OR DELAY IS CAUSED BY ANY EVENT OR SERIES OF EVENTS OUTSIDE OUR REASONABLE CONTROL.
11.3. SUBJECT TO SECTION 11.1, OUR TOTAL LIABILITY TO YOU AND/OR TO ANY OTHER PARTY (INCLUDING BUT NOT LIMITED TO LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION, OR OTHERWISE) FOR ANY LOSSES RESULTING FROM ANY CLAIM ARISING OUT OF OR RELATING TO: (i) ANY BREACH BY US OF OUR OBLIGATIONS UNDER THE DPA OR UNDER SECTIONS 7, 12, OR 13 OF THIS AGREEMENT (OR IN RELATION TO ANY PERSONAL DATA BREACH) WILL NOT IN THE AGGREGATE EXCEED A SUM EQUAL TO [200%] OF THE VALUE OF THE TOTAL SUBSCRIPTION FEES UNDER ALL ORDER FORMS PAID BY YOU TO US DURING THE PERIOD OF TWELVE (12) CONSECUTIVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST OF ANY AND ALL EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED; OR (ii) ANY OTHER LOSSES WILL NOT IN THE AGGREGATE EXCEED SUM EQUAL TO [100%] OF SUCH VALUE (IN EACH CASE EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH LOSSES AND EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE).
11.4. You and We agree that the limitations of liability set forth herein represent a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Us and You. You understand, acknowledge, and accept that the Software and Our services would not be provided without such limitations.
12. Confidentiality and publicity.
12.1. You and We (each respectively a "Receiving Party") each undertake not to disclose to any person or use any Confidential Information disclosed by the other party (the "Disclosing Party"), or such other information which ought reasonably to be regarded as the Confidential Information of the Disclosing Party, except as expressly permitted herein.
12.2. Information will not be deemed to constitute Confidential Information to the extent that it: (i) is, or becomes, publicly known (other than through a breach of this Agreement or any Order Form); (ii) is in the possession of the Receiving Party prior to receipt thereof from the Disclosing Party; (iii) is independently developed by the Receiving Party; (iv) is lawfully disclosed to the Receiving Party by a third party not subject to a confidentiality agreement or obligation relating to such disclosure; (v) has been agreed beforehand in writing between You and Us not to constitute Confidential Information; or (vi) is trivial or obvious.
12.3. Each Receiving Party may disclose the Disclosing Party's Confidential Information: (i) to its staff, Affiliates, or advisers who need to know such information for the purpose of exercising the Receiving Party's rights or undertaking its obligations under this Agreement or any Order Form (the "Permitted Purpose"), provided that such Receiving Party ensures that such persons fully comply with this Section 12 as though it applied to them and that such Receiving Party will be liable for any failure of such persons to do so; or (ii) as may be required by law, a court of competent jurisdiction, or any governmental, supervisory, or regulatory authority (including any recognized investment or securities exchange). No Receiving Party will use the Disclosing Party's Confidential Information for any purpose other than the Permitted Purpose.
12.4. You may, during the term of this Agreement, use Our name or logo(s) solely to identify Yourself as a customer of Our business. Save as expressly permitted herein, You will not otherwise use Our name or trademarks without Our prior written consent.
12.5. You will not (and will ensure that none of Your staff will) initiate or participate in any action or conduct tending to injure, bring into disrepute, ridicule, damage, harm, or destroy Our goodwill or reputation or the goodwill or reputation of Our Affiliates.
12.6. You hereby authorize Us to use and display Your business's name and trademarks on Our website and in Our promotional and marketing materials for publicity purposes for the duration of this Agreement.
13. Data usage and security.
13.2. Subject always to Sections 12 and 13.1 We may monitor, collect, store, and use information on Your (and the User's) use of the Software and its performance in order to detect threats or errors to the Software or Our operations and for the purposes of the further development and improvement of the Software and Our services.
13.3. Except to the extent that We have direct obligations under applicable Data Protection Laws and except as stipulated in the DPA, You acknowledge that We have no control over (and do not endorse or verify) Your Data submitted or provided to Us through the Software and that We may not actively monitor Your Data. You will ensure (and will be solely and fully responsible for) the accuracy, quality, integrity, and legality of Your Data and that its use (including in connection with the Software and any services We provide under and pursuant to any Order Form) complies with all applicable laws.
14.1. Any notice given under or in connection with this Agreement or any Order Form must be in writing and delivered either by pre-paid recorded-delivery post (fulfilled by an internationally recognized delivery service) or by email to relevant postal or email address stipulated in the latest Order Form entered into by You and Us as being the address for the recipient party's receipt of notices under or in connection with this Agreement and each Order Form. If the recipient party has communicated an alternative email or postal address for the receipt of notices by way of notice to the other party in accordance with this Section 14, then notices given to that recipient party will be sent to the latest alternative address thus communicated.
14.2. Any notice will be deemed to have been received: (i) if sent by pre-paid recorded-delivery post (fulfilled by an internationally recognized delivery service), at the time recorded by the delivery service; or (ii) if sent by email, three (3) calendar days after transmission, provided always that no error message, out-of-office, or other automated reply, bounce-back, or other notification of a failure of or delay to transmission is received by the party sending such notice within forty-eight (48) hours of attempted transmission.
14.3. This Section 14 does not apply to the service of any proceedings or any documents in any legal action.
15.1. If You are an individual (as opposed to an organization), You warrant and represent that You are not a consumer and that Your use of and access to the Software will not in any manner be: (i) for domestic, non-business, or household use; or (ii) outside the course or context of Your trade, business, craft, or profession.
15.2. Neither this Agreement nor any Order Form will create any agency, partnership, employment, fiduciary, or joint venture relationship. Each party hereto confirms it is acting on its own behalf and not for the benefit of any other person. You and We each acknowledge that the arrangements between You and Us are non-exclusive.
15.3. We may assign, novate, subcontract, or otherwise transfer any of Our rights or obligations under this Agreement or any Order Form. You may not do likewise without Our prior written consent.
15.4. This Agreement (together with each Order Form entered into pursuant hereto) constitutes the entire agreement and understanding between You and Us in relation to the subject matter hereof and supersedes all prior representations, assurances, arrangements, understandings, agreements (including without limitation all Evaluation Agreements), statements, promises, heads of terms, or warranties (whether written or oral) relating to the same. You and We each acknowledge that, in entering into this Agreement, neither You nor We are relying upon (and neither You nor We will have any remedies in respect of) any statement, representation, assurance, promise, or warranty (whether made innocently or negligently) made by or on behalf of the other party hereto and which is not expressly set out or specifically referred to in this Agreement. You and We each agree not to have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. You and We each irrevocably and unconditionally waive any rights to claim damages and/or to rescind this Agreement for any misrepresentation or for breach of any warranty not contained in this Agreement (unless such misrepresentation or warranty was made fraudulently). Nothing in this Section 15.4 will operate to exclude any liability for fraud or for fraudulent misrepresentation.
15.5. THE TERMS AND CONDITIONS OF THIS AGREEMENT AND EACH ORDER FORM ENTERED INTO PURSUANT TO AND IN ACCORDANCE WITH THIS AGREEMENT WILL BE TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS RELATING TO THE SAME, INCLUDING WITHOUT LIMITATION (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY TERMS OR CONDITIONS IMPLIED BY LAW, TRADE CUSTOM, PRACTICE, AND/OR COURSE OF DEALING, AND/OR ANY TERMS OR CONDITIONS THAT YOU OR YOUR STAFF MAY PURPORT TO APPLY, IMPOSE, OR INCORPORATE UNDER ANY OFFER, ACKNOWLEDGMENT, CORRESPONDENCE, OR ANY OTHER DOCUMENT ISSUED BY YOU OR ON YOUR BEHALF. ACCORDINGLY, NO TERMS OR CONDITIONS ENDORSED ON, DELIVERED WITH, OR CONTAINED IN ANY PURCHASE ORDER, SPECIFICATION, OR OTHER DOCUMENT ISSUED BY YOU OR ON YOUR BEHALF WILL FORM PART OF THIS AGREEMENT OR ANY ORDER FORM. ANY TERMS OR CONDITIONS OF YOUR BUSINESS DIVERGING FROM THE PROVISIONS HEREOF WILL NOT BE VALID, EVEN IF WE PERFORM ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT OR ANY ORDER FORM WITHOUT RESERVATION.
15.6. No variation of this Agreement or any Order Form will be effective unless effected by way of a written document that expressly refers to it and is signed by the parties' respective duly authorized signatories.
15.7. The rights and remedies provided under this Agreement and each Order Form are in addition to, and not exclusive of, any rights or remedies provided by law or otherwise.
15.8. A waiver of any right or remedy under this Agreement or any Order Form or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy will not waive that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
15.9. If any provision or part-provision of this Agreement or any Order Form is or becomes invalid, illegal, or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision pursuant to this Section 15.9 will not affect the validity and enforceability of the rest of this Agreement (or, as applicable, the relevant Order Form).
15.10. You will comply (and will ensure all Users will comply) with all applicable laws, rules, and regulations governing export that apply to the Software (or any part thereof), and will not export or re-export, the Software (or any part thereof) to, or access or use the Software in, any territory for which an export license or other approval is required under the applicable laws without having obtained it.
15.11. No one other than You or Us will have any right to enforce any of the terms of this Agreement or any Order Form. You and We agree that neither You nor We are acting for the benefit of any third party.
15.12. This Agreement (and each Order Form) and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection therewith (or its subject matter or formation) will be governed by and construed in accordance with English law without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You and We irrevocably agree that the courts of London, England will have exclusive jurisdiction to settle any such dispute or claim
"Affiliate" Any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the relevant subject entity.
"Agreement" This Agreement, including its Exhibits and the DPA (each as varied from time to time in accordance with the provisions hereof).
"Ancillary Services" The services (if any) expressly identified as the 'Ancillary Services' in the relevant Order Form that we have agreed under such Order Form (and in consideration of the relevant Ancillary Fees) to provide to You in connection with the Software.
"Ancillary Fees" The fees expressly identified as the 'Ancillary Fees' in the relevant Order Form (as amended from time to time in accordance with the provisions hereof) payable by You to Us in consideration of the Ancillary Services provided under and pursuant to such Order Form (if applicable).
"Confidential Information" Subject to Section 12.2, the following information (in each case whether or not marked as 'confidential', on whatever media stored, and whether in oral, written, or electronic form): (i) the terms of this Agreement (including, for clarity, the DPA) and each Order Form; (ii) information regarding either party's Intellectual Property Rights, technology, assets, products, development plans, strategies, methods, operations, processes, staff, revenue, financial data, marketing strategies, and current and future business plans; (iii) the contents of (and attachments to) emails sent, drafted, scheduled, and received by Users from the email account(s) in respect of which the Software is actively used pursuant hereto; and (iv) information whose disclosure would, or would be likely to, prejudice the commercial interests of the Disclosing Party.
"Control" The beneficial ownership of more than 50% of the relevant subject entity's issued share capital or voting interests, or the legal power to direct or cause the direction of the management of such subject entity.
"Controller" As defined in the DPA.
"Data Protection Legislation" As defined in the DPA.
"Dependencies" The dependencies and minimum requirements that You must ensure you fulfil in order to access and use the Software and which are stated in the relevant Order Form.
"Derived Data" In each case except to the extent that it comprises Personal Data or Your Confidential Information: (i) any and all works created or devised by the Software or arising in relation to or as a result of any output of the Software (including without limitation any Productivity Information); and (ii) any data which is derived from Your Data, including any data processed and stored as mathematical constructs, as well as any statistical or aggregated and anonymized data.
"Disclosing Party" As defined in Section 12.1.
"DPA" The data processing addendum available at [INSERT LINK], and which constitutes part of this Agreement.
"Evaluation Agreement" As defined in Section 10.
"Fees" Collectively, the Subscription Fees, the Ancillary Fees, and the Support Fees (as stipulated in the relevant Order Form).
"Improvements" As defined in Section 7.6.
"Initial Order Term" The period described as such stated in the relevant Order Form.
"Intellectual Property Rights" Any and all patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks, service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software or source code, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and 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.
"Intended Termination Date" As defined in Section 6.4.
"Losses" Any and all losses, liabilities, costs (including costs of investigation, litigation, settlement, and judgment), claims, damages, demands, disbursements, expenses (including legal costs on a solicitor and own-client basis), fees, interest, and penalties (including fines imposed by regulatory bodies or supervisory authorities), whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation, or otherwise.
"Maximum User Limit" The limitation on the number of Users set forth in the relevant Order Form.
"Open-Source Software" Any software subject to a version of the General Public License, together with any other 'open source' software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) and any 'free software' as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html).
"Order Form" A separate written agreement (in the format stipulated by Us) executed by or on behalf of You (or, pursuant and subject to Section 2.4, one of Your Affiliates) and Us pursuant to this Agreement in either electronic or physical form and through which You (or, as applicable, the relevant Affiliate) may order the provision of the Software (and, as expressly stated therein, any relevant Support Services and/or Ancillary Services), and which fully incorporates these terms and conditions.
"Output" Any recommendation or any other information generated by the Software and made available to You, and/or any data or rights created, generated, or devised as a result of any such information or recommendation or as a result of any implementation or integration of the Software in Your environment or systems.
"Payment Method" A current and valid method of payment that We accept from to time (as updated from time to time by Us), and which may include payment via a third-party payment processor.
"Personal Data" As defined in the DPA.
"Personal Data Breach" As defined in the DPA.
"Preview Period" As defined in Section 10.
"Preview Use" As defined in Section 10.
"Processor" As defined in the DPA.
"Productivity Information" Any and all data, information, reports, analytics, and analysis derived wholly or partially from Your Data.
"Receiving Party" As defined in Section 12.1.
"Renewal Order Term" Either: (i) where, pursuant to the relevant Order Form, Your subscription to the Software is on an annual basis (as stated in such Order Form), a period of twelve (12) consecutive months commencing immediately upon the expiration of (as applicable) the Initial Order Term or the Renewal Order Term that immediately preceded it; or (ii) where, pursuant to the relevant Order Form, Your subscription to the Software is on a monthly basis (as stated in such Order Form), a further Subscription Month commencing immediately upon the expiration of (as applicable) the Initial Order Term or the Renewal Order Term that immediately preceded it.
"Software" Our proprietary software product known at the date hereof as [INSERT NAME] made available to You (whether via the cloud, as a desktop or mobile application, and/or as a plug-in or extension to third-party software) subject to and in accordance with the terms of this Agreement.
"Specification" The Specification of the Software as stated at the date of the relevant Order Form at: [INSERT URL].
"Subscription Fees" The fees identified as the 'Subscription Fees' in the relevant Order Form (as amended from time to time in accordance with the provisions hereof) payable by You to Us in consideration of Your use of and access to the Software.
"Subscription Month" As defined in Section 5.2.
"Subscription Year" As defined in Section 5.2.
"Support Services" The support services described at [INSERT URL] from time to time.
"Support Fees" The fees expressly identified as the 'Support Fees' in the relevant Order Form (as amended from time to time in accordance with the provisions hereof) payable by You to Us in consideration of the Support Services provided under and pursuant to such Order Form (if applicable).
"User" A member of Your organization's direct employees or internal staff duly authorized by You to use and access the Software subject to and in accordance with this Agreement.
"Your Data" Any and all: (i) content included in emails [(including any attachments thereof)] scanned, analyzed, or processed by the Software pursuant to this Agreement and which are sent, received, scheduled, or drafted by You (or, as applicable, the Users), and any and all related tasks and scheduled meetings; (ii) work patterns of You and/or Users and typical patterns and behaviors in relation thereto as may be discernable, predictable, or deducible from such emails, tasks, and meetings; and (iii) other commercial or proprietary data uploaded or otherwise submitted to the Software directly by You, Your staff or Users, or by Us on Your behalf, including any data submitted into (or used in connection with) the Software indirectly via any third-party application that You may use in accordance with this Agreement.