THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR, FOR FREE OR TRIAL SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 18, 2019. It is effective between You and Us as of the date of Your accepting this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Agreement” means this Master Subscription Agreement.
1.3 “Confidential Information” means information that one party provides to the other party during the term of this Agreement that is identified at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
1.4 “Customer Data” means any data, information or material processed or stored by You in the Platform.
1.5 “Effective Date” and “Acceptance Date” means the date that the Agreement was signed, except in cases where a specific Effective Date’ is listed in the Quotation.
1.6 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.6 “Modifications” means any work based on or incorporating all or any portion of the Platform, including, without limitation, modifications, enhancements and customizations to the Platform developed by Us.
1.8 “Organizational Unit” means the business, business unit, department, or functional line that is authorized to use the applicable Platform for which Service has been purchased.
1.9 “Platform” means online software as a service offering that We make available to You hereunder.
1.10 “Quotation” means a document for purchases of Services hereunder, prepared by Us, signed by You, and accepted by us.
1.11 “Renewal Date” means the date upon which the subscription needs to be renewed by to continue access to the Platform. Unless otherwise specified, the Renewal Date is one day prior to the Acceptance Date plus the Term.
1.12 “Subscription Term” means the period of time which You may access the applicable Platform as set forth in a Quotation.
1.13 “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.
1.14 “Third Party Software” means applications or software Platforms that are developed by third parties, and that may interoperate with the Platform, the use of which software is governed by the applicable terms and conditions specified by such third party.
1.15 “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.16 “Usage Data” means diagnostic and usage related content from the operation of the Platform and may include, but is not limited to, type of browser and systems that are used and/or accessed, licensing, system and service performance data. Usage Data does not, however, include Customer Data, except in aggregated and de-identified form.
1.17 “We,” “Us” or “Our” means UrbanFootprint.
1.18 “You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
2. Background. These terms and conditions (“Agreement”) govern the provision of the Platform by UrbanFootprint and the party indicated in the applicable Quotation (“Customer”, “You”). The parties agree as follows: We are in the business of developing and providing access to UrbanFootprint, a platform for managing land use data, testing land use scenarios and providing data analytics. You wish to have access to such platform as described herein.
3.1 Access. We shall make the Platform available to You pursuant to the terms of this Agreement and the relevant Quotation during the Subscription Term. The Platform will be hosted by Us, and provided as a service.
3.2 Use of the Platform. Any limitations on Your scope of use of the Platform will be as set forth in Exhibit A to be agreed to by and between You and Us. We will provide You access to the Platform solely by Users authorized by You. User accounts and passwords are specific to individual Users, and may not be shared among or by other users. Your administrators may reassign a User account during the Subscription Term, if a former User no longer requires access to or use of the Platform. All Users must be Your employees or contractors and be part of the Your Organizational Unit(s) as specified in Exhibit A.
3.2(a) If You allow use of the Platform by Users in excess of the number indicated in Exhibit A or outside of the Organizational Unit(s) specified in Exhibit A, such excess use will not be a breach of this Agreement, but such additional Users may use the Platform, subject to Your payment of the applicable fees for the Subscription Term at the highest undiscounted Enterprise rate.
3.2(b) Per capita means the number of persons residing in the Your jurisdiction, as measured at the commencement of the applicable term. If jurisdictional pricing is specified in Exhibit A, You shall only use the Platform for projects conducted for the specified jurisdiction(s).
3.3 Support. During the Subscription Term, We will provide You with Our standard level of support as indicated in the attached Service Level Agreement (SLA) at no additional charge.
3.4 Customer Responsibilities. You will be: (a) responsible for Users’ compliance with this Agreement and shall use the Platform only in accordance with the Platform documentation, (b) responsible for the accuracy, integrity, and legality of Customer Data and the means by which You acquire and use such Customer Data, and (c) solely responsible for determining the suitability of the Platform for Your business and complying with any regulations and laws, (including, without limitation, export, data protection and privacy laws) applicable to Customer Data and Your use of the Platform.
3.5 Restrictions. You shall not, directly or indirectly: (a) provide the Platform on a timesharing, service bureau or other similar basis; (b) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Platform or the data contained therein, (c) use the Platform, or permit it to be used, for purposes of benchmarking, competitive intelligence, comparative analysis, or to develop a competing product or service, or (d) resell, relicense or redistribute the Platform or data exported from the Platform in whole or in part.
3.6 Professional Services. If the Quotation indicates that We will provide any customization, installation, additional training, or similar services, We shall provide such services as described in an Exhibit for the fees described therein.
3.7 Client Software. We may provide You with certain client software (such as local web applications or mobile device apps) to facilitate use of the Platform. We hereby grant to You a non-exclusive, non-transferable, non-sublicensable right, during the term of this Agreement, to use such software solely in connection with the use of the Platform.
3.8 Security and Business Continuity. We shall provide the Platform in accordance with the business continuity metrics in the attached Service Level Agreement.
3.9 Open Source Software. We may in Our sole discretion make available certain portions of the Platform available under software licenses such as open source licenses. Nothing in this Agreement restricts Your rights under any such separate license.
4. Customer Data, Usage Data.
4.1 Processing of Customer Data. You are solely responsible for entering Your Customer Data (including Personal Data) into the Platform. Subject to the remainder of this Section 4, We will have the right to use the Customer Data for the sole purpose of providing the Platform to You and to perform its obligations under this Agreement, including to prevent or address support, service or technical problems. You shall not upload any Customer Data into the Platform without sufficient rights to do so. Without limiting the foregoing, You, and not Us, will be responsible to enter into any licenses from third parties who may have intellectual property rights in the Customer Data that may be necessary to use the Customer Data in connection with the Platform, and You shall ensure that its use of the Customer Data complies with any of Your non-disclosure obligations, and any applicable privacy policies or laws.
4.2 Security. We will use reasonable and customary technical measures to protect against accidental or unauthorized destruction, loss, alteration or disclosure of Customer Data, and reasonable and customary security programs and procedures to ensure that unauthorized persons will not have access to any equipment used by Us to process Customer Data. We do not recommend storing personally identifiable information of third parties in the Platform, and accordingly, We will not be responsible for any liability or loss arising from You storing such data in the Platform.
4.3 Usage Data. In the course of providing You with the Platform, We may also collect, use, process and store Usage Data in order to create and compile anonymized and aggregated statistics about the Platform. We will have the right to use such data in any manner, subject only to the confidentiality obligations of Section 8.
4.4 Data Sharing Agreement. If You are participating in the Data Sharing Agreement (as outlined in Exhibit C), We will have the right to use, reproduce, modify and otherwise exploit, at no additional payment to You or Your agents, the Customer Data.
5. Proprietary Rights.
5.1 Ownership of Platform and Modifications. We retain all right, title and interest, including all intellectual property rights, in and to the Platform. In the event We prepare any modification of the Platform at Your request, the parties may enter into a separate written professional services agreement. Unless the parties do so in advance in writing, We will retain all right, title and interest in and to any such modifications.
5.2 Suggestions. You or Your Users may provide suggestions, enhancement or feature requests or other feedback to Us with respect to the Platform (collectively, “Feedback”). All Feedback will be given by You entirely voluntarily. You grant and agrees to grant to Us a royalty-free, transferable, irrevocable, worldwide, fully paid-up license under Your intellectual property rights to use, disclose, reproduce, license (with rights to sublicense through multiple tiers of sublicensees), sell, offer for sale, distribute, import and otherwise exploit the Feedback without restriction or obligation of any kind or nature.
6.1 Fees and Payment. You shall pay all fees specified in the relevant Quotation and such fees are payable in United States dollars (unless expressly agreed otherwise in a Quotation), are exclusive of taxes and are non-refundable. Fees are due in advance, unless otherwise set forth in the Quotation.
6.2 Additional Capacity. Additional Capacity may be added during a Subscription Term at Our then-current fees. All such additional Capacity must be purchased in advance. If You elect to increase Your Capacity during a given month of the Subscription Term, unless otherwise set forth in the Quotation, We shall prorate fees for such additional Capacity for any partial month of the Subscription Term.
6.3 Overdue Charges. If any undisputed charge owing by You to Us remain unpaid 30 days after its due date, including without limitation due to a declined or expired credit card, We may, without limiting Our rights and remedies, suspend Your use of the Platform until such amounts are paid in full.
6.4 Taxes. Unless otherwise provided in a Quotation, fees specified in quotes or Quotations, do not include any Taxes, and You are responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on Our net income.
6.5 Cancellation and Subscription Renewal. You may cancel this Quotation by providing Us notice of non-renewal prior to the expiration of the then-current Subscription Term. If You do not provide notice of non-renewal to us prior to the expiration of the then-current Subscription Term, this Quotation will automatically renew for additional Subscription Terms of equal duration at Our then-applicable pricing rates.
6.6 Credit Cards. If You chose to pay by credit card, You authorize Us to automatically bill the credit card or payment method on file for automatic renewal Subscription Terms unless You cancel this Quotation prior to the expiration of the then-current Subscription Term as provided in 6.6.
6.7 Refunds. Fees paid for any Subscription Period are non-refundable.
6.8 Free Trials. We may make the Platform available to You on a trial basis free of charge for a period specified in a Quotation. This Agreement shall govern Your the use of the Platform during any such trial period. The provisions of Sections 7.4 (Transition), 9.1 (Our Warranties), 10.1 (Our Third Party Claims), and 12.1 (Publicity) will not apply to any free trial.
6.9 Plan Deprecation. We may terminate the Plan that You are on. In such cases, You will be informed of new plans that You are eligible for at least 90 days prior to their renewal. If Your renewal date is less than 90 days from the plan change notification date, You will be able to renew Your current plan for no more than 90 days before transitioning to a new plan.
7. Term and Termination.
7.1 Term. This Agreement commences on the Effective Date and continues through the Subscription Term until all Quotations hereunder have expired or have been terminated. The Subscription Term for each Quotation will commence on the Effective Date (or such other date specified in the Quotation) and will continue for the relevant period set forth in the Quotation.
7.2 Termination. Either party may terminate this Agreement and any then-current Quotation prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for 30 days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
7.3 Effect of Termination. Upon expiration or termination of this Agreement, the rights granted under this Agreement and any then-current Quotations will be immediately revoked and We may immediately deactivate Your account. We may keep copies of Customer Data solely to the extent necessary for the performance of its obligations under this Agreement; however, We will not be obligated to keep Your Data after the date of termination except as may be specifically set forth in a Quotation. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for any period prior to the effective date of termination, unless otherwise stated in this Agreement.
7.4 Transition. Upon expiration or termination of this Agreement, for any reason other than termination by Us for breach by You under Section 7.2, You may elect to continue access to the Platform with a limited-access subscription that allows You to copy the Customer Data from the Platform to its own computer servers, but not to add Customer Data or engage in additional processing of Customer Data. Unless otherwise set forth in the Quotation, such limited access subscription will be, for each month, 25% of the prorated amount payable for the last month of the subscription.
7.5 Surviving Provisions. Sections 4, 5, 7.3, 8, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement.
8.1 Confidentiality. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) limit access to any Confidential Information of the disclosing party, except (a) for those employees, representatives, or contractors of the receiving party who require access to the Confidential Information to enable receiving party to exercise its rights and obligations under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party; or (b) as disclosure may be required by law or governmental regulation, subject to the receiving party providing to the disclosing party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the receiving party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the disclosing party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The receiving party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement and Platform source code of the Platform are Confidential Information of Us or Our licensors.
8.2 Destruction. Within 5 days after a disclosing party’s request, the receiving party shall return or destroy the disclosing party’s Confidential Information; provided, however, that the receiving party shall be entitled to retain archival copies of the Confidential Information of the disclosing party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.
9.1 Our Warranties. We warrant that (a) the Platform shall perform materially in accordance with the written specifications for the Platform; and (b) We will use commercially reasonable measures to detect whether the Platform contains any Malicious Code. If the Platform does not conform to the warranty specified above and before You pursue any other remedies, You must notify Us in writing no later than 30 days after the breach of warranty, and We agree to use commercially reasonable efforts to cure the non-conforming portions of the Platform. We are not responsible for any non-compliance resulting from or caused by any (i) Malicious Code present in Customer Data, (ii) modifications made by anyone other than Us or its agents or (iii) software not supplied by Us. Customer’s sole and exclusive remedy for a breach of any of warranties contained in this Section shall be to terminate the Agreement for cause and, notwithstanding anything to the contrary in this Agreement, have US refund to You the pro rata unused portion of any prepaid fees.
9.2 Reciprocal Warranty. Each party warrants to the other party that it has the legal power and authority to enter into this Agreement.
9.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, OUR PLATFORM IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.Third Party Claims.
10.1 Our Third Party Claims. We shall at Our expense (a) defend or settle any third party claims, actions and demands brought against You and its officers, directors, employees or agents, where the third party claimant expressly asserts that (i) the Platform infringes such third party’s trademarks, copyrights or US patents, or (ii) We misappropriated such third party’s trade secrets in the development of the Platform; and (b) pay damages, if any, finally awarded by a court of competent jurisdiction against Your indemnified parties or agreed upon in settlement by Us (including other reasonable out-of-pocket costs incurred by You, including reasonable attorneys’ fees, in connection with enforcing this Section 10.1), subject to the exclusions (1)-(5) set forth below. We have no obligation to You under this Section for any claim, action or demand to the extent that such claim, demand or action is based on: (1) Third Party Software or Customer Data, (2) modifications where the Platform would not infringe (including by way of example, Modifications made by You, but excluding Modifications made by Us or our agents), (3) combination of the Platform with other software, processes or materials where the Platform would not infringe except for such combination, or (4) Your use of the Platform not in accordance with this Agreement. In the event that We believes the Platform, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section applies, then We may, in Our discretion and at its sole expense: (1) procure for You the right to continue using such Platform or any applicable part thereof, (2) replace such Platform, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Platform, or infringing part thereof, so as to make it noninfringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then You shall have the right to terminate this Agreement solely with respect to the infringing Platform, and, notwithstanding anything to the contrary in this Agreement, have Us refund to You the pro rata unused portion of any pre-paid service fees. This Section states Our sole liability to, and Your exclusive remedy for, infringement claims of any kind in connection with the Our Platforms or services delivered under or in connection with this agreement.
10.2 Your Third Party Claims. You shall at Your expense (a) defend or settle any third party claims, actions and demands brought against Us and Our officers, directors, employees and agents; and (b) pay all damages, if any, finally awarded against Our indemnified parties or agreed upon in settlement by You (including other reasonable out-of-pocket costs incurred by Us, including reasonable attorneys’ fees, in connection with enforcing this Section) arising from: (i) Your breach or violation of Your responsibilities under Sections 3.4 or 3.5, (ii) claims that Customer Data or use thereof in the Platform infringes or violates the rights of a third party, or (iii) claims that You or Your Users’ use of the Platform or services in violation of this Agreement infringes or violates the rights of such third party.
10.3 Indemnification Procedures. The party entitled to seek coverage pursuant to this Section (the “Indemnified Party”) shall: (a) promptly notify the other party obligated to provide such indemnification (the “Indemnifying Party”) in writing of any such claim; (b) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent); and (c) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense.
11. Limitation of Liability.
11.1 Limitation on All Damages. EXCEPT FOR A BREACH BY YOU OF SECTION 2.5 AND YOUR OBLIGATIONS TO PAY FEES UNDER ANY ORDER ISSUED UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAYABLE BY YOU TO US UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.
11.2 Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE BROUGHT (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE).
12.1 Publicity. We may include Your name on a customer list and in Our portfolio for sales purposes, provided that We will not take any action implying sponsorship by You.
12.2 United States Government Users. The Platform is commercial computer software as defined in FAR 2.101. Any related documentation, technical data, or services are also commercial. In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred in the Platform, related documentation, technical data, services, or any deliverable to the United States Government are specified in this Agreement. All other uses are prohibited and no ownership rights are conferred.
12.3 Export Compliance. Platform is subject to all applicable export control laws and regulations, including, without limitation, those of the United States government.
12.4 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Quotations), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void.
12.5 Relationship of the Parties. Us and You are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
12.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
12.7 Choice of Law and Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. You and Us agree to submit to the personal and non-exclusive jurisdiction of the courts located in Santa Clara County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
12.8 Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to You at the address You provide, or, in the case of Us, to Our address set forth above. Notices regarding the Platform in general may be given by electronic mail to Your e-mail address on record with Us.
12.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s reasonable control, and denial of service attacks.
12.10 Agreement. This Agreement and any Quotations represent the entire agreement of the parties concerning its subject matter and is intended to be the final expression of their Agreement, and supersede all prior and contemporaneous agreements, proposals, or representations, whether written or oral. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. No amendment or waiver of any provision of this Agreement or a Quotation shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of You and Us.
12.11 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
13. Free Trial
13.1 Free Trial. If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, US AND OUR AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.