Terms
This Subscription Agreement ("Agreement")
is entered into and effective as of _______________________ ("Effective
Date") by and between ieDezine Ltd., a limited liability
company having its registered office at Fleming Court, Leigh Road, Eastleigh,
SO50 9PD, UK ("IEDEZINE")
and ___________________________, a _____________________ corporation,
having its principal place of business at
_____________________________________________________________ ("Subscriber").
For good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.
Definitions.
"Affiliate" means any entity which
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.
"dezinehours" means hours of computation
time to execute third party and IEDEZINE proprietary applications within the
Service.
"Malicious Code" means viruses,
worms, time bombs, Trojan horses and other harmful or malicious code, files,
scripts, agents or programs.
"Order Form" means the ordering
documents for Subscriber's purchases from IEDEZINE that are executed hereunder
by the parties from time to time. Order
Forms that have been executed by both parties
shall be deemed incorporated herein.
"Service" means the online,
Web-based execution of third party and IEDEZINE proprietary applications,
including all updates, support, forums and content (including pre-release
services) provided by IEDEZINE via http://www.dezineforce.com and/or
other designated websites.
"Subscriber
Administrator" means an
individual nominated by Subscriber to administer Subscriber's account.
"Subscriber Data" means all
electronic data or information submitted by Subscriber to the Service, and all
output results generated by Third Party Applications executed by Subscriber in
the course of Subscriber's use of the Service.
"Third Party Applications" means
the online directory of on-demand applications that work with the Service,
located at http://www.dezineforce.com or at any successor websites.
"Usage
Data" means all data and information relating to Subscriber's use of
the Service, including specific applications used and the frequency and
duration of such use, volumes of data processed and other system and Service
performance metrics.
"User Guide" means the online
user guide for the Service, accessible via http://www.dezineforce.com,
as updated from time to time.
"Users" means individuals who
are authorized by Subscriber to use the Service and who have been supplied user
identifications and passwords by Subscriber Administrator (or by IEDEZINE at
Subscriber's request). Users may
include but are not limited to employees, consultants, contractors and agents
of Subscriber or its Affiliates.
2.
Service.
2.1
Provision of Service. IEDEZINE
shall make the Service available to Subscriber and its Users pursuant to this
Agreement and all Order Forms during a subscription term. Subscriber agrees that its purchase of
subscriptions is neither contingent upon the delivery of any future
functionality or features nor dependent upon any oral or written public
comments made by IEDEZINE with respect to future functionality or features.
2.2
Usage Level. IEDEZINE shall calculate the dezinehours used by Subscriber each month.
Subscriber shall be entitled to use the service
each month up to the dezinehours level specified in the relevant Order Form. Use of the Service above this level
shall, unless specified in the relevant Order Form, be (i) at IEDEZINE's
discretion; (ii) subject to an additional charge; and (iii) with priority
determined by IEDEZINE.
2.3
Support. IEDEZINE shall provide Subscriber with 2
person-days of online support, and any additional consultancy specified in the
relevant Order Form, during a subscription term. Unless otherwise expressly provided in the relevant
Order Form, all additional consultancy hours shall be billed to Subscriber at
IEDEZINE's then applicable standard hourly consultancy rates. This support will be
provided to Subscriber Administrator or a person or persons nominated by Subscriber
Administrator.
2.4
Access to IEDEZINE Proprietary Applications.
IEDEZINE shall make accessible to Subscriber the range of optimization
applications specified in the relevant Order Form and enable Subscriber to
execute optimization computations on the number of
parameters simultaneously that is specified in the relevant Order Form.
2.5
Data Storage. IEDEZINE
shall provide storage for the number of Terabytes specified in the relevant
Order Form for Subscriber Data. Subscriber Data above this level shall be at
IEDEZINE's discretion and may be subject to an additional charge. IEDEZINE shall have no obligation to provide storage for
Subscriber Data above the level specified in the relevant Order Form and shall
not be liable in respect of storage activity or failure to store in excess of
this level unless specifically agreed in writing with Subscriber.
3.
Use of the Service.
3.1
IEDEZINE Responsibilities. IEDEZINE shall: (i) in addition to its
confidentiality obligations hereunder, not use, modify or disclose to anyone
other than Subscriber and Users
the Subscriber Data; (ii) to the extent the Subscriber Data comprises "personal
data" within the meaning of applicable data protection laws and regulations,
and in respect of which it is hereby acknowledged that IEDEZINE is acting as
data processor only: (a) process the
Subscriber Data in accordance with this Agreement, Subscriber's instructions
and applicable data protection laws and regulations, (b) take appropriate
technical, organizational and security measures against unauthorized access to
or unauthorized alteration, disclosure, destruction or loss of Subscriber Data,
and (c) take reasonable steps to ensure that employees used by IEDEZINE to provide the
Service are aware of and are suitably trained in such technical, organizational
and security measures; (iii) maintain the security and integrity of the
Service and the Subscriber Data; (iv) provide standard support to Subscriber's
Users at no additional charge; and, (v) use commercially reasonable efforts to
make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IEDEZINE shall
give at least 8 hours notice via the Service and which IEDEZINE shall schedule
to the extent reasonably practicable during the weekend hours from 18:00 UK
time Friday to 06:00 UK time Monday); or (b) any unavailability caused by
circumstances beyond IEDEZINE's reasonable control, including without
limitation, acts of God, acts of government, flood, fire, earthquakes, civil
unrest, acts of terror, strikes or other labor problems (other than those
involving IEDEZINE employees), computer, telecommunications, Internet service
provider or hosting facility failures or delays involving hardware, software or
power systems not within IEDEZINE's possession or reasonable control, and
denial of service attacks.
3.2
Subscriber Responsibilities. Subscriber is responsible for all activities
that occur in User accounts and for Subscriber and Users'
compliance with this Agreement. Subscriber acknowledges that where IEDEZINE has access to and
otherwise processes personal data of or provided or made available by
Subscriber in connection with the provision of the Service, Subscriber shall be
the data controller. Subscriber shall: (i) have sole
responsibility for the accuracy, quality, integrity, legality, reliability, and
appropriateness of all Subscriber Data and shall ensure that all instructions
given by it to IEDEZINE in respect of the Subscriber Data will be in compliance
with applicable data protection legislation; (ii) use commercially reasonable
efforts to prevent unauthorized access to, or use of, the Service, and notify
IEDEZINE promptly of any such unauthorized access or use; and (iii) comply with
all applicable local, state, federal national and / or foreign laws in using the Service, including without
limitation all applicable data protection laws and regulations. Subscriber shall use commercially reasonable efforts
to assist IEDEZINE, as reasonably requested by IEDEZINE in connection with this
Agreement to facilitate compliance by IEDEZINE with
any relevant obligations under applicable data protection laws and regulations.
3.3
Use Restrictions.
While using the Service,
Subscriber will comply with all applicable
laws and regulations, and with
any and all policies, procedures and
codes of conduct or notices we provide to Subscriber from
time to time during the term of this Agreement.
Subscriber shall use the Service solely for its internal engineering design projects as
contemplated by this Agreement and shall not:
i)
license, sublicense, sell, resell, rent, lease,
transfer, assign, distribute, time share or otherwise commercially exploit or
make the Service available to any third party, other than to Users or as
otherwise contemplated by this Agreement;
ii)
send spam or otherwise duplicative or unsolicited
messages in violation of applicable laws;
iii)
send or store Malicious Code;
iv) interfere
with or disrupt the integrity or performance of the Service or the data
contained therein (or the networks connected to the Service);
v) work around any technical limitations in the Service;
vi)
reverse engineer, decompile or
disassemble ("Decompile") any part of the Service or any software
used to provide the Service, except
and only to the extent that: (i) Subscriber has
first notified IEDEZEZINE of its intention to undertake such Decompilation
unless IEDEZINE first provides such information as Subscriber would otherwise
be entitled at law to obtain by means of such Decompilation; (ii) IEDEZINE has
not provided such information; and (iii) applicable
law expressly permits;
vii)
gain unauthorized access to the Service or its
related systems or networks;
viii)
send, store, upload, post, e-mail or otherwise
make available content that;
(a)
incites, advocates, or expresses pornography,
obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous
violence;
(b)
is intended to threaten, stalk, defame, defraud,
degrade, victimize, or intimidate an individual or group of individuals for any
reason, including on the basis of age, gender, disability, ethnicity, sexual
orientation, race, or religion, or to incite or encourage anyone else to do so;
(c)
is illegal or violates any laws, including laws
related to adult activities and content, child pornography, criminal
activities, piracy and counterfeiting, gambling, drugs, online pharmacies,
copyright and other intellectual property laws, defamation, libel, and rights
of privacy;
ix)
use the service to sell, design,
market, distribute or advertise, or facilitate the sale, design, marketing,
distribution or advertising of:
(a) illegal
gambling (including online casinos, sports books, bingo, and poker);
(b) illicit
drugs, illicit pharmaceuticals, or controlled substances;
(c) counterfeit,
pirated, or stolen goods;
(d) goods that
are considered indecent, obscene, or pornographic;
(e) registered
or unregistered securities; or
(f) any goods
or services that if sold or designed via the service would cause IEDEZINE or
you to violate any laws and regulations;
x) benchmark or performance test the Service or disclose
the results of the Service to a third party without the prior written approval of
IEDEZINE;
xi)
interferes with anyone's use and enjoyment
of the Service; and / or
xii)
attempt to do or achieve any of the above.
3.4
Third-Party Applications. IEDEZINE
does not warrant Third Party Applications, their licensors or any of their
products or services, whether or not such products or services are included within the Service or designated by IEDEZINE as "certified,"
"validated" or otherwise. Certain
Third Party Applications offered by IEDEZINE to Subscriber shall be made available pursuant
to any terms specified by the Third Pary Application licensors and agreed to by
Subscriber in connection with and in addition to this Agreement. Subscriber's use of Third Party Application
functionality shall be governed by such terms, which shall prevail in relation to the use of
such functionality in the event of any inconsistency with the
terms of this Agreement. IEDEZINE shall
not be liable for the quality of data generated or processed by Third Party
Applications. Any
failure by Subscriber to comply with the terms specified by any Third Party
Application licensors and the consequences of any such failure shall not
relieve Subscriber of its obligations under this Agreement.
3.5
Public Areas of the Service. You agree to post content and use public areas of the Service in accordance with this Agreement and the codes of conduct posted for these public areas. You
understand that IEDEZINE does not control or endorse the content that you and
others post in public areas of the Service. By posting or otherwise providing content in public areas
of the Service, you
are granting to IEDEZINE the free, unlimited, worldwide, transferable and
perpetual permission to use, modify, copy, distribute, sub-license, display and
commercialise the content (including by incorporating it into other works) in
connection with our development, provision and improvement of the Service and / or otherwise in
connection with our business, and publish your name with the
content. You also give us permission to grant these rights to others. You represent
and warrant that you have all the rights necessary for you to grant the rights described
in this section and that the use and
publication of the content does not breach any law. IEDEZINE will not pay you
for content you post on public areas of the Service. You may have access to information on the Service - documents such as white papers, knowledge-base articles,
datasheets and FAQs. Unless otherwise specified, you may use the documents only
for informational purposes. You may not copy, distribute, modify, or make
derivative works of the documents. Educational institutions that are officially
accredited under local law may download and copy the documents for distribution
only in the classroom.
3.6
Publicity.
Neither party may issue press releases relating to this Agreement
without the other party's prior written consent. Either party may include the name and logo of
the other party in lists of subscribers or vendors in accordance with the other
party's standard guidelines.
4.
Fees & Payment.
4.1
User Fees. Subscriber shall pay all fees as specified
in all Order Forms hereunder. Except as
otherwise provided, all fees are quoted and payable in UK pounds sterling>. Except as otherwise specified herein or in an
Order Form, fees are based on services purchased and not actual usage, payment
obligations are non-cancelable and fees paid are non-refundable.
4.2
Prices. The
price for the Service excludes your Internet access
charges, mobile text messaging, wireless service and other data transmissions,
unless stated otherwise. It is your responsibility to ensure that you have
appropriate access to the Service and all such charges are also your responsibility. Currency exchange settlements are
based on your agreement with your payment method provider. We may change the
price of a service included within the Service from time to time, but we will give you at least 10
business days notice before a new price takes effect. If you do not agree to
the new price, then you must cancel and stop using the service before the new
price takes effect. If the Service
is
provided on a period basis (for
example, monthly or annually), then the new price will start on the date that
we indicate.
4.3
Invoicing & Payment. Fees for the Service will be invoiced in
advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form,
charges are due net 30 days from the invoice date. Subscriber is responsible for maintaining
complete and accurate billing and contact information on the Service.
4.4
Overdue Payments. Any payment not received from Subscriber by
the due date may accrue (regardless of any disputes you may have raised with
respect to your bill), at IEDEZINE's discretion and without further notice,
late charges at the rate of 1% of the outstanding balance per month, or the
maximum rate permitted by law, whichever is lower, from the date such payment
was due until the date paid.
4.5
Suspension of Service. If Subscriber's account is 30 days or more
overdue (regardless of any disputes you may have raised with respect to your
bill), in addition to any of its other rights or remedies, IEDEZINE reserves
the right to suspend the Service provided to Subscriber, without liability to
IEDEZINE, until such amounts are paid in full.
4.6
Taxes. Unless otherwise stated, IEDEZINE's fees do
not include any direct or indirect direct or indirect local, state, federal or
foreign taxes, levies, duties or similar governmental assessments or similar
governmental assessments of any nature, including value-added, use or
withholding taxes (collectively, "Taxes"). Subscriber is responsible for paying all
Taxes associated with its purchases hereunder, excluding taxes based on
IEDEZINE's net income or property. If
IEDEZINE has the legal obligation to pay or collect Taxes for which Subscriber
is responsible under this section, the appropriate amount shall be invoiced to
and paid by Subscriber, unless Subscriber provides IEDEZINE with a valid tax
exemption certificate authorized by the appropriate taxing authority.
5.
Proprietary Rights.
5.1
Reservation of Rights. Subject to the limited rights expressly
granted hereunder, IEDEZINE reserves all rights, title and interest in and to
the Service, including all related intellectual property rights. No rights are granted to Subscriber hereunder
other than as expressly set forth herein.
5.2
Restrictions. Save to the extent expressly permitted by
applicable law notwithstanding this limitation, Subscriber shall not (i)
modify, copy or create derivative works based on the Service; (ii) frame or
mirror any content forming part of the Service, other than on Subscriber's own
intranets or otherwise for its own internal business purposes; (iii) build a competitive product or
service to the Service; or (iv) adopt, copy or reproduce in whole
or part any ideas, features, functions or graphics of
the Service.
5.3
Usage
Data. IEDEZINE
shall own all rights, title and interest in and to all Usage Data as and from
the time it is generated and may use such Usage Data for any and all purposes
whatsoever. Notwithstanding the
preceding sentence, IEDEZINE shall not publicly disclose Subscriber Usage Data
in with Subscriber's name or otherwise in such a way as to enable
identification of Subscriber from such Usage Data or other information
associated with such Usage Data.
5.4
Subscriber Data. As between IEDEZINE and Subscriber,
Subscriber exclusively owns all rights, title and interest in and to all
Subscriber Data. Subscriber Data is
deemed Confidential Information under this Agreement. IEDEZINE shall not access Subscriber's User
accounts, including Subscriber Data, except to respond to service or technical
problems or at Subscriber's or User's request.
5.5
Monitoring. Whilst
we consider your use of the Service to be private, in order to provide you the Service, we may collect certain information about Service performance, your computer and your Service use. We may automatically upload this information from
your computer. This data will not personally identify Subscriber.
5.6
Suggestions. You hereby grant IEDEZINE
a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual
license to use or incorporate into the Service any suggestions, enhancement
requests, recommendations or other feedback provided by Subscriber or its Users
relating to the operation of the Service.
6.
Confidentiality.
6.1
Definition of Confidential Information. As used herein, "Confidential Information"
means all confidential information of a party ("Disclosing Party")
disclosed to the other party ("Receiving Party"), whether
orally or in writing, that is designated as confidential or that reasonably
should be understood to be confidential given the nature of the information and
the circumstances of disclosure, including the terms and conditions of this
Agreement (including pricing and other terms reflected in all Order Forms
hereunder), the Subscriber Data, the Service, business and marketing plans,
technology and technical information, product designs, and business
processes. Confidential Information
(except for Subscriber Data) shall 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) was
independently developed by the Receiving Party without breach of any obligation
owed to the Disclosing Party; or (iv) is received from a third party without
breach of any obligation owed to the Disclosing Party.
6.2
Confidentiality. The Receiving Party shall not disclose or use
any Confidential Information of the Disclosing Party for any purpose outside
the scope of this Agreement, except with the Disclosing Party's prior written
permission.
6.3
Protection.
Each party agrees to protect the confidentiality
of the Confidential Information of the other party in the same manner that it
protects the confidentiality of its own confidential information of like kind
(but in no event using less than reasonable care).
6.4
Compelled
Disclosure. If the Receiving Party
is compelled by law to disclose Confidential Information of the Disclosing
Party, it shall provide the Disclosing Party with prior notice of such
compelled disclosure (to the extent legally permitted or reasonably
practicable) and reasonable assistance, at Disclosing Party's cost, if the
Disclosing Party wishes to contest the disclosure.
6.5
Remedies. If
the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential
Information of the Disclosing Party in breach of confidentiality protections
hereunder, the Disclosing Party shall have the right, in addition to any other
remedies available to it, to seek injunctive relief to enjoin such acts, it
being specifically acknowledged by the parties that any other available
remedies are inadequate.
7.
Warranties & Disclaimers.
7.1
IEDEZINE Warranties. IEDEZINE represents and warrants that (i) it has the legal power to enter into this Agreement
(ii) it will provide the Service in a
manner consistent with general industry standards reasonably applicable to the
provision thereof; (iii) the
Service shall perform materially in accordance with the User Guide; (iv) it owns or otherwise has sufficient rights in the Service
to grant to Subscriber the rights to use the Service granted herein; and (v) the Service does not infringe any intellectual property
rights of any third party.
7.2
Subscriber Warranties. Subscriber
represents, warrants and undertakes that for the duration of the Agreement: (i)
it has the legal power to enter into this Agreement; (ii) it has instructed
IEDEZINE to process the Subscriber Data transferred only on its behalf and in
accordance with the applicable data protection laws and regulations and this
Agreement; (iii) the collection and processing of Subscriber Data by it
and/or as contemplated by this Agreement complies in all respects with
applicable data protection laws and regulations; (iv) that it will ensure
compliance with any technical and organisational security measures imposed on
the IEDEZINE; (v) it shall obtain and maintain in force all necessary licenses,
consents and permissions for use and/or processing by IEDEZINE of the
Subscriber Data in accordance with this Agreement; and (vi) that, if the
transfer of Subscriber Data involves sensitive personal data (as defined by the
Data Protection Act 1998), the relevant individuals have been informed or will
be informed before the transfer that their data could be transmitted to a third
country not providing adequate protection.
7.3
Disclaimer. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, IEDEZINE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR
FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW.
8.
Indemnities.
8.1
Indemnification by IEDEZINE. Subject to Subscriber's compliance
with the provisions of this Agreement,
IEDEZINE hereby agrees to
indemnify and keep
Subscriber indemnified
against any loss, damage or costs (including reasonable attorneys' fees)
incurred in connection with claims, demands, suits, or proceedings ("Claims")
made or brought against Subscriber by a third party alleging (i) a breach by IEDEZINE of its obligations under applicable
data protection laws and regulations; or (ii) that the use of the Service as
contemplated hereunder infringes the intellectual property rights of a third
party; provided, that
Subscriber (a) promptly gives written notice of the Claim to IEDEZINE; (b)
gives IEDEZINE sole control of the defence and settlement of the Claim (provided that IEDEZINE may not
settle or defend any Claim unless it unconditionally releases Subscriber of all
liability); and (c) provides to IEDEZINE, at IEDEZINE's cost, all reasonable
assistance.
8.2
Indemnification by Subscriber. Subscriber hereby
agrees to indemnify and keep IEDEZINE indemnified against any loss, damage or costs (including reasonable
attorneys' fees) incurred in connection with: (i) any and all
breaches by Subscriber of its obligations under Sections 3.2, 3.3, 3.5, 5.2, 6,
7.2; and / or (ii) any and all Claims
made or brought against IEDEZINE by a third party alleging (i)
a breach by Subscriber of its obligations under applicable data protection
laws and regulations; or (ii) that the
Subscriber Data, or Subscriber's use of the Service in violation of this
Agreement, infringes the intellectual property rights of, or has otherwise
harmed, a third party; provided, that IEDEZINE (a) promptly gives
written notice of the Claim to Subscriber; (b) gives Subscriber sole control of
the defence and settlement of the Claim (provided that
Subscriber may not settle or defend any Claim unless it unconditionally
releases IEDEZINE of all liability); and (c) provides to Subscriber, at
Subscriber's cost, all reasonable assistance.
9.
Limitation of Liability.
9.1
IEDEZINE makes no representations or warranties as to
satisfactory quality and fitness for a particular purpose or otherwise in connection
with Subscriber's use of (or inability to use) the Service and associated
applications, including in connection with the data and results generated by
the Service. Subscriber acknowledges and agrees that it is Subscriber's
responsibility to ensure that the
facilities, functions and results of the Service and associated
applications meet its requirements.
9.2
Subscriber acknowledges and agrees that it does not rely on,
and shall have no remedy in respect of, any promise, assurance, statement,
warranty, undertaking or representation made (whether innocently or
negligently) by IEDZINE or any other person except as expressly set out in this
Agreement in respect of which its sole remedy shall be for breach of contract
(and any other potential right or remedy of Subscriber, including any right to
claim damages for misrepresentation and/or to rescind this Agreement, is hereby
waived irrevocably and unconditionally).
9.3
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAXIMUM
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE LESSER OF £5,000 OR THE AMOUNTS ACTUALLY PAID BY
AND DUE FROM SUBSCRIBER HEREUNDER. THE EXISTENCE OF ONE
OR MORE CLAIMS SHALL NOT EXPAND SUCH LIMIT. SUBJECT TO SECTION 8.2, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, SUBSCRIBER'S MAXIMUM AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS PAID AND PAYABLE
UNDER THIS AGREEMENT. THE EXISTENCE OF ONE OR MORE CLAIMS SHALL NOT EXPAND SUCH
LIMIT.
9.4
Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS
OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR
EXEMPLARY DAMAGES HOWEVER CAUSED, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY (WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHERWISE), AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT THE DAMAGES WERE FORSEEABLE.
9.5
Nothing in this Agreement shall operate to limit or avoid
liability on the part of ether party for death or personal injury or for
fraud.
10.
Term & Termination.
10.1
Term of Agreement. This Agreement commences on the Effective Date and continues until:(i)
terminated in accordance with its terms; or (ii) all User subscriptions granted in accordance with this
Agreement have expired or been terminated, whichever is the
earlier.
10.2
Term of User Subscriptions. User subscriptions
commence on the start date specified in the relevant Order Form and continue
for the subscription term specified therein. User subscriptions shall
automatically renew for additional periods of one (1) year at the list price in
effect at the time of renewal unless either party gives the other notice of
non-renewal at least 30 days prior to the end of the relevant subscription
term.
10.3
Termination for Cause. A party may terminate
this Agreement and any and all User subscriptions for cause: (i) upon
30 days written notice of a material breach to the other party if such breach
remains uncured at the expiration of such period. Upon any termination for
cause by Subscriber, IEDEZINE shall refund Subscriber pro rata any fees
covering the remainder of the subscription term after the date of termination.
10.4
Termination by IEDEZINE. IEDEZINE may change the Service at any time and for any reason without notice. If IEDEZINE
cancels a particular service or feature of the Service, IEDEZINE will make commercially reasonable efforts to
replace it with a comparable service or feature, but is not obligated to do so.
IEDEZINE may cancel or suspend the Service or a portion of the Service at any time and for any reason without notice, including
if the Subscriber violates the terms of this Agreement. If IEDEZINE does, your right to use the Service will stop right away. Cancellation of the Service will not change the Subscriber's obligation to pay any
charges due on its billing account. If IEDEZINE cancels the Service without cause, IEDEZINE will refund the unused portion of
the Subscriber's service charge for that period on a pro rata basis
10.5
Return of Subscriber Data. Upon request by Subscriber made within 30
days after the effective date of termination, IEDEZINE will make available to
Subscriber Administrator on appropriate medium Subscriber Data in the format in
which generated by the Service and / or relevant Third Party Applications. After such 30-day period, IEDEZINE shall have
no obligation to maintain or provide any Subscriber Data and shall thereafter,
unless legally prohibited, reserve the right to delete all Subscriber Data in
its systems or otherwise in its possession or under its control.
10.6
Surviving
Provisions.
The following provisions shall survive any termination or expiration of
this Agreement: Section 1 and Sections 4 to 11 inclusive. Termination
or expiry of this Agreement shall be without prejudice to the rights or
obligations accrued by either party prior to such termination or expiry.
11.
General Provisions.
11.1
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership,
franchise, joint venture, agency, fiduciary or employment relationship between
the parties.
11.2
No Third-Party Beneficiaries. There are no third-party beneficiaries to
this Agreement.
11.3
Notices. All notices under this Agreement shall be in
writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second
business day after mailing; (iii) the second business day after sending by
confirmed facsimile; or (iv) the second business day after sending by
email. Notices to IEDEZINE shall be
addressed to the attention of its CEO, or otherwise designated person. Notices to Subscriber shall be addressed to
Subscriber's signatory of this Agreement unless otherwise designated below.
11.4
Waiver and Cumulative Remedies. No failure or delay by either party in
exercising any right under this Agreement shall constitute a waiver of that
right. Other than as expressly stated
herein, the remedies provided herein are in addition to, and not exclusive of,
any other remedies of a party at law or in equity.
11.5
Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be contrary to law, the 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 of this Agreement shall remain in effect.
11.6
Assignment. Neither party may assign any of its rights or
obligations hereunder, 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 Order Forms), without consent of the other party, in connection with a
merger, acquisition, corporate reorganization, or sale of all or substantially
all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights
or obligations under this Agreement in breach of this section shall be void and
of no effect. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
11.7
Governing Law. This Agreement shall be governed exclusively
by, and construed exclusively in accordance with, the laws of England and Wales.
11.8
Venue. The courts in the domicile of IEDEZINE shall
have exclusive jurisdiction to adjudicate any dispute arising out of or
relating to this Agreement. Each party
hereby consents to the jurisdiction of such courts.
11.9
Entire Agreement. This Agreement, including all exhibits and
addenda hereto and all Order Forms, constitutes the entire agreement between
the parties, and supersedes all prior and contemporaneous agreements, proposals
or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless in writing and signed by
the party against whom the modification, amendment or waiver is to be
asserted. To the extent of any conflict
or inconsistency between the provisions in the body of this Agreement and any
exhibit or addendum hereto or any Order Form, the terms of such exhibit,
addendum or Order Form shall prevail.
Notwithstanding any language to the contrary therein, no terms or
conditions stated in a Subscriber purchase order or in any other Subscriber
order documentation (excluding Order Forms) shall be incorporated into or form
any part of this Agreement, and all such terms or conditions shall be null and
void.
11.10
Counterparts. This Agreement may be executed by facsimile
and in counterparts, which taken together shall form one legal instrument.
IN WITNESS WHEREOF, the parties' authorized signatories have
duly executed this Agreement as of the Effective Date:
ieDezine Ltd.
By:
Print Name:
Title:
Date:
Name and/or title of person authorized to receive
notices
for IEDEZINE under this Agreement (if different
from above):
Subscriber
By:
Print Name:
Title:
Date:
Name and/or title of person authorized to receive
notices for
Subscriber under this Agreement (if different
from above):