2. FREE TRIAL
3. USE OF PRODUCTS
We reserve the right at any time to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to Specifications, features and functionality. We will use reasonable commercial efforts to provide You notice of any material changes by updating relevant information in the applicable Online Portal.
4. RESTRICTIONS ON PRODUCT ACCESS AND USE
If we reasonably believe any Product use or Backedup Data: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Products; or (iii) may otherwise subject us to liability, we reserve the right to refuse or disable access to the Product or Backedup Data. We may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. We will use reasonable efforts to contact an Administrator prior to taking such action. However, we may restrict access to any Product or Backedup Data without prior notice as necessary to comply with Applicable Law or to protect against damage or security threats. If we take any such action without prior notice, we will later provide notice to an Administrator, unless prohibited by Applicable Law.
5. BACKEDUP DATA
Customer represents and warrants it has all rights (including from Backedup Sites and Users) as necessary to permit access, copying and use of Backedup Data with the Product. Customer is responsible for the accuracy, quality and legality of the Backedup Data, and the means by which Customer acquired rights to the Backedup Data for use with the Product. For purposes of this Agreement, Backedup Data is the property of Customer, not any User, and we are under no obligation to inform Users that Customer controls such information with us.
Customer retains all its right, title and interest in and to the Backedup Data, and we neither own nor acquire rights in the Backedup Data other than the rights expressly granted under this Agreement.
We will use physical, technical and administrative safeguards, consistent with commercially reasonable industry practices, designed to secure the confidentiality, integrity and availability of Backedup Data under our control against accidental or unauthorized loss, access or disclosure. We use the same safeguards for all Backedup Data, regardless of its nature or contents. We are a processor and not a controller of all Backedup Data.
Customer must maintain authorization and access to the Backedup Sites so that we are regularly able to access Backedup Data for purposes of providing the Product. Customer agrees and acknowledges that Backedup Data may not be available or restorable a) if Customer changes such access authority or otherwise restricts our access to such Backedup Site; b) due to unavailability of the Backedup Site; c) with respect to modifications to the Backedup Data that are not captured in the backup frequency or retention schedule for the Product.
Unless otherwise agreed to in writing in a separate Business Associate Agreement, You agree that Backedup Data will not contain Protected Health Information and Your use of a Product will not otherwise make us a Business Associate of Customer or any Administrator. You must request that we enter into a valid Business Associate Agreement with the appropriate party and ensure such agreement is in place prior to the transfer of any Backedup Data that requires a Business Associate Agreement. The terms “Protected Health Information” “Business Associate” and “Business Associate Agreement” will have the same meanings as set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).
6. USE OF OTHER INFORMATION
If You provide us with comments or other feedback regarding the Products or our business (collectively “Feedback”), directly or through any third party, You do so without any expectation of compensation and hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the Products and for any other purpose. Feedback is strictly voluntary, and we are not required to hold it in confidence.
Operational data concerning use of the Products (“Log Data”), that servers automatically record relating to the access and use of the Products, IP address, authentication tokens, machine identification, access logs, and settings are used by us to provide the Products and operate our business and you agree that we may use such Log Data for such purposes.
7. FEES AND PAYMENTS
You agree to pay all applicable charges for the Products ordered by you, including prepaid charges, monthly recurring charges, and any additional usage based charges. Fees and payments will be calculated by us based solely on records maintained by us. You must notify us of any payment dispute in writing within fifteen (15) days of receipt of a disputed invoice. Prices do not include taxes, duties, and fees (such as shipping and handling) unless otherwise quoted.
All new orders for physical Products will be shipped from us and billed to You; title and risk of loss to such physical Products will pass to You upon shipment to the destination designated in Your order or to any customs officials or border authority.
You must provide us with complete and accurate billing and contact information including Your complete legal name, street address, e-mail address and the name and telephone number of an authorized billing contact. You agree to update this information within three (3) days of any change. You must provide an approved payment method (“Payment Method”) with each Order. By providing us with a Payment Method, You authorize us to automatically charge that Payment Method, or any updated Payment Method provided by You, for all charges and fees incurred in connection with the Product You order. We reserve the right to change our approved Payment Methods at any time and will use reasonable commercial efforts to alert You to any such changes.
All amounts payable by You will be made without setoff, deduction or withholding. We may charge interest at the rate of 1.5% per month (or the highest rate permitted by law) on late payments. If we are unable to collect any amount owed, we may take any other steps deemed necessary to collect such fees, and You will be responsible for all our incurred costs such as collection fees, court costs and legal fees. Furthermore, in the event of non-payment, following notice of such non-payment, we may suspend or terminate access to and use of a Product until payment is made in full.
8. YOUR RESPONSIBILITY FOR ACCESS TO YOUR PRODUCT ACCOUNT
You are responsible for the security of all Your access credentials to the Product, including any action You permit any person or entity to take related to the Product and Backedup Data using your access credentials. You are responsible for the proper configuration and maintenance of safeguards as they relate to access to and use of the Product and Backedup Data, including but not limited to individual Administrator and User permissions, local Device access, network connectivity and internet connectivity.
You agree to notify us as soon as practicable of any unauthorized use of any access credentials, password or account or any other known or suspected breach of security.
During the Term Paralogic will provide support for the Products in accordance with the service levels specified in the Proposal. You are required to log all requests for support services with the Paralogic Helpdesk. By requesting support services, Customer authorizes us to access the Product and/or the Backedup Data for the purpose of providing the requested Product support. We may rely on the instructions and authorizations given to us by any Administrator with access to a Product, and we will have no obligation to inform any other Administrator of the Product of the same.
10. UPDATES AND TESTING
You agree that we may, and You hereby authorize us, from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product. During maintenance windows the Product may not be accessible; we will make reasonable efforts to notify You of such maintenance windows.
11. CONFIDENTIAL INFORMATION
Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, (iv) was independently developed by the receiving party; (v) is approved for release or disclosure by the disclosing party without restriction; or (vi) is Feedback, Aggregate Data, Log Data or Backedup Data.
Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
Each party acknowledges that any breach of any provision of this Section on Treatment of Confidential Information by the receiving party may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
12. WARRANTIES AND DISCLAIMERS
Each of us represents and warrants that it has validly entered into this Agreement; has the legal power to do so; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
During an applicable Subscription Term, we will provide the Product using a commercially reasonable level of skill and care in material accordance with the applicable Specifications. Your exclusive remedy in the event that we do not do so is to terminate this Agreement or any Order for cause as specified in section 17.
EXCEPT FOR THE LIMITED WARRANTIES HEREIN, THE PRODUCTS ARE PROVIDED AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA SECURITY, OR WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CUSTOMER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.
WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
WE DISCLAIM ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR TRANSMISSION OF DATA BY US. YOU ACKNOWLEDGE THAT NO PASSWORD-PROTECTED SYSTEM OF DATA STORAGE CAN BE MADE ENTIRELY IMPENETRABLE AND AGREE THAT THE PRODUCTS AND BACKEDUP DATA ARE NOT GUARANTEED AGAINST ALL SECURITY THREATS OR OTHER VULNERABILITIES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
13. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE CUMULATIVE LIABILITY FOR ALL CLAIMS AND DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR STRICT LIABILITY) WILL BE LIMITED TO DIRECT DAMAGES ONLY THAT DO NOT EXCEED AN AMOUNT EQUAL TO THE FEES WE RECEIVE FOR THE INDIVIDUAL APPLICABLE PRODUCT IN THE 12 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT INVOLVING THAT PRODUCT GIVING RISE TO THE CLAIM OCCURRED.
Your remedies. If the Product becomes, or in Paralogic’s or its suppliers opinion is likely to become, the subject of an infringement claim, Paralogic or is suppliers may, in its sole and exclusive discretion, either (a) procure for you the right to continue to use the Product, or (b) replace or modify the Product so that it becomes non- infringing, without materially affecting the functionality thereof. If the alternatives speciﬁed in (a) or (b) above are not commercially reasonable in Paralogic’s sole and exclusive discretion, then Paralogic may terminate this contract, and you shall receive a pro-rated refund of all initial and one-time set up fees paid by you to Paralogic (if any) for the allegedly infringing Product. This Section 12.2 represents your sole and exclusive remedy and Paralogic’s sole and exclusive liability for any infringement claims based on the Product.
15. EXPORT CONTROL
You represent and warrant that Your use of the Products and the Backedup Data will comply with all export laws, restrictions, national security controls, and regulations. You shall not export, directly or indirectly, the Product or any Content (through use of the Product) in violation of any export laws, rules or regulations. You shall defend, indemnify, and hold harmless Paralogic, and its licensors and suppliers, from and against any and all damages, ﬁnes, penalties, assessments, liabilities, costs and expenses (including legal fees and expenses) arising out of any claim that the Product (or any Content by use of the Product) was exported, shipped or transported in violation of applicable laws, rules, or regulations.
All disputes arising out of or related to this Agreement or any Product must be brought on an individual basis, and You hereby waive Your right to, and agree that You will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.
17. TERM AND TERMINATION
Term. The initial subscription term (“Initial Subscription Term”) for the Product shall be 12 months. Upon the expiration of the Initial Subscription Term, this Agreement shall automatically renew for one or more additional terms of 12 months each (a Renewal Term) unless and until either party notifies the other party of its intent to terminate at least 60 days prior to the expiration of the Initial Subscription Term or any full Renewal Term. The Initial Term, together with any and all Renewal Terms, are collectively referred to as “The Term”.
Termination for Breach. Either party may terminate this Agreement or an individual Order for cause upon 30 days’ notice of a material breach of any of its duties, obligations or responsibilities under this Agreement, provided that the breaching party has failed to cure such breach (or provide an acceptable plan for curing such breach) within the thirty (30) day notice period.
Access to Backedup Sites. If a Backedup Site amends its API guidelines in such a way that materially affects our ability to access the Backedup Site to provide the Product in accordance with the Specifications, and if we are unable to perform substantially the same functionality, either party may terminate the applicable Order by providing to the other thirty (30) days’ written notice. We will refund any unused prepaid fees for the remainder of the applicable Subscription Term as your sole and exclusive remedy.
Effect of Termination. Upon any termination of a Subscription Term, Customer will immediately discontinue all use of the Product. For up to sixty (60) days after the effective date of termination, we will, upon written request allow Customer to export or download a copy of its Backedup Data as provided in the Specifications. After such period, we have no obligation to maintain or provide any Backedup Data and may thereafter delete or destroy all copies of the Backedup Data, unless legally prohibited.
Governing Law. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be made, governed, construed and enforced in accordance with English law without reference to conﬂicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with this contract shall be in the courts of England and Wales, and the Parties hereby agree to submit to the jurisdiction and venue of such courts. This contract shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.
Assignment. You may not assign this Agreement (including with respect to any individual Product or Backedup Data), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
Survival. The applicable sections titled Fees and Payment, Use of Other Information, Confidential Information, Warranties and Disclaimer, Limitations of Liability, Indemnification, Term and Termination, Disputes, Miscellaneous and Definitions will survive the termination or expiration of this Agreement.
No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
Entire Agreement. These Term of Use, applicable Order and applicable Policies constitute the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.
Publicity. You agree that we may publicly refer to Customer on our website and sales presentations, as a customer of ours and may use Customer’s logo for such purposes.
“Administrator” means one or more persons or entities authorized by Customer to manage or use the Product on Customer’s behalf, including access to and control of Backedup Data. A Product may have multiple Administrators and we expressly may rely on the authorization and instructions of any Product Administrator, until we receive written instructions to the contrary.
“Backedup Data” means the data and content that Customer designates for copying, backup and use with a Product.
“Backedup Site” means a third party application or service with which the Product interacts, upon Customer’s authorization, to obtain copies of the Backedup Data.
“Confidential Information” means all operational written or oral information, disclosed by either party to the other that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, but not including Feedback, Aggregate Data, Log Data or Backedup Data.
“Customer” is the entity that owns the Backedup Site account. References to “Customer” shall in the applicable context also refer to any Administrator acting on Customer’s behalf.
“Device” means any hardware-based component of a Product offering.
“Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
“Online Portal” means a web-based application or interface that contains information related to the Product, including the ability to order, pay for, manage, monitor, support and/or use the Product.
“Order” means acceptance of Paralogic’s Proposal that specifies such things as the Product, Price, Backedup Site, data storage allotment and/or number of Users.
“Policies” means the terms and conditions applicable to order, configure, access, use, and support of the Products. Policies are published on an Online Portal.
“Specifications” means any Policies, documentation, user manuals or other materials relating to the Products. Specifications may be published on an Online Portal.
“User” means an individual affiliated with Customer who Customer authorizes to use or have use of the Product. For purposes of this Agreement, the Customer will be the owner of the Backedup Data and Customer is responsible for the acts and omissions of its Users.