THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, 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 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 is effective between you and us as of the date of you accepting this Agreement.
“Affiliate” means any business entity that directly or indirectly controls, is controlled by, or is under common control with either party and is bound to the terms of this Agreement. A business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, more than fifty percent (50%) of the issued and outstanding voting securities, capital stock, or other comparable equity or ownership interest of such business entity.
“Malicious Code” means any software specifically intended to result in damage to, or create security breaches in, a computer system including, without limitation, computer viruses, worms, and trojan horses.
"Order Form" means the documents for placing orders hereunder provided by us, including Exhibits, Addendum, or Work Orders that are entered into between you and us or any of our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Services" means services that you or your Affiliates purchase under an Order Form.
"Non-TrewPort Applications" means online applications and offline software products that are provided by entities or individuals other than us and are clearly identified as such, and that may interoperate with the Services of Software.
"Users" means a specific individual whose accounts are created within our system for the purpose of managing their identity from our system. Users are limited to your employees, and, provided they have agreed to be bound by all of your obligations under this Agreement, your consultants, contractors and agents.
"We," "us", "our", or “TrewPort”, whether or not capitalized, means the TrewPort Technologies Incorporation.
"You" or "your", whether or not capitalized, means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by you or imported from your systems to the Services.
2.1. Provision of Services. We shall make the Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features. Any software that may be made available by TrewPort in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, TrewPort hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software in connection with the Service. You agree not to access the Service by any means other than through the interface that is provided by TrewPort for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of TrewPort or any third party is granted to you in connection with the Service.
2.2. Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be managed by no more than the specified number of Users and no additional functionality as marked in the Exhibit 1, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for managing designated Users only. User subscriptions are on a named User, rather than a concurrent User, basis. Each User subscription is allocated to a particular individual, and no user subscription may be used, at any time, by other than the specific individual to which it is allocated when the User subscription is created. Additional functionality can be added at a subscription price at any point in time and this amount will be prorated accordingly.
3.1. Our Responsibilities. We shall: (i) provide our basic support for the Services to you at no additional charge, and/or upgraded support if purchased separately, so long as you are current in your payments for User subscriptions, (ii) use commercially reasonable efforts to make the support available 24 hours a day, 7 days a week, except for: any unavailability caused by circumstances beyond our reasonable control including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), electrical failure, general Internet failures or delay, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which you acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the applicable user guide and applicable laws and government regulations. You shall not (a) make the Services or Software available to anyone other than Users, (b) sell, resell, rent or lease the Services or Software, (c) use the Services or Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or Software or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or Software. Although TrewPort has no obligation to monitor your use of the Services or Software, TrewPort may do so and may prohibit any use of the Services it believes may be in violation of this Agreement.
4.1. Acquisition of Non-TrewPort Applications. We or third parties may from time to time make available to you third-party products or services, including but not limited to Non-TrewPort Applications and implementation, customization and other consulting services. Any acquisition by you of such Non-TrewPort Applications, and any exchange of data between you and any non-TrewPort provider, is solely between you and the applicable non-TrewPort provider. We do not warrant or support Non-TrewPort Applications, whether or not they are designated by us as “certified” or otherwise, except as specified in an Order Form.
4.2. Integration with Non-TrewPort Applications. The Services may contain features designed to interoperate with Non-TrewPort Applications. To use such features, you may be required to obtain access to such Non-TrewPort Applications from their providers.
4.3. Disclaimer. Under no circumstances will TrewPort be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You agree that you must evaluate, and bear all risks associated with, the use of any third-party content, including any reliance on the accuracy, completeness, or usefulness of such content.
5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on product services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. A minimum one year subscription is required. Licensee will provide a screenshot of User count from the Services at the end of every third-month (quarterly). If there is any additional user count more than the purchased license user count, a prorated amount for such users will be due and payable. TrewPort shall have no obligation to provide any Services if Licensee has failed to pay TrewPort when due, and no good faith dispute exists with respect to such payment.
5.2. Invoicing and Payment. We will send you an invoice in advance and otherwise in accordance with the relevant Order Form via e-mail and you will send us a check or direct deposit payment into TrewPort’s account, within thirty (30) days of such invoice date. You agree to pay for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased User Subscriptions). Such payments shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. You are responsible for providing complete and accurate billing, number of Users count of the Services and contact information to us and notifying us of any changes to such information.
5.3. Overdue Charges. If any charges are not received from you by the due date, then at our discretion, (a) such charges may accrue late interest at the rate of 1.5% 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, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for Services is thirty (30) or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to you until such amounts are paid in full. We will give you at least seven (7) days’ prior notice that your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending Services to you.
5.5. Payment Disputes. We shall not exercise our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) to the extent you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, as determined in TrewPort’s sole discretion.
5.6. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, except to the extent you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services and Software, all improvements, enhancements or modifications thereto, whether or not developed based on your suggestions or other feedback; all software, applications, inventions or other technology developed in connection with support; and all related intellectual property rights related to any of the foregoing. No rights are granted to you hereunder other than as expressly set forth herein.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) modify, translate, or create derivate works based on the Services or any Software except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithm relevant to the Services or any Software (except to the extent such restrictions are contrary to applicable law), (v) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or (v) use the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Your Applications and Code. If you, a third party acting on your behalf, or a User creates applications or program code using the Services, in addition to all other rights we may have, you authorize us to copy, display and adapt such applications and program code, solely as necessary for us to provide the Services in accordance with this Agreement. Subject to the above, we acquire no right, title or interest from you or your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
6.4. Your Data. Subject to the limited rights granted by you hereunder, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the product any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the operation of the Services or Software.
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") 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. Your Confidential Information shall include, without limitation, Your Data; our Confidential Information shall include, without limitation, the Services and Software; and Confidential Information of each party shall include, without limitation, the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your 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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party, as demonstrated by written evidence.
7.2. Protection of Confidential Information. During the Term of this Agreement and until five (5) years after the expiration or termination of this Agreement, requirements of this section shall apply. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Without limiting the generality of the foregoing, the Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and except as otherwise authorized by the Disclosing Party in writing, shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants, or other third party under confidentiality obligations at least as stringent as those in this Agreement, without the other party’s prior written consent. The Receiving Party will notify the Disclosing Party promptly as practicable of any unauthorized use or disclosure of Confidential Information of which the Receiving Party becomes aware of.
7.3. Publicity. Except as required by law, each party further agrees not to disclose the existence of this Agreement or any of its terms, including without limitation, the nature of the Services to be performed or the fact that TrewPort and Licensee are parties to this Agreement without the prior written consent of the other party. All such information in this Section 7.3 is Confidential Information and subject to the terms and conditions of this Agreement.
7.4.Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.5. Effect of Termination. Upon the termination of this Agreement, the Disclosing Party may request that the Receiving Party (i) immediately cease all use of all Confidential Information and (ii) promptly, at the Disclosing Party’s instruction, either return to the Disclosing Party or destroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify in writing to the Disclosing Party the completion of such return and/or destruction; provided, however, the Receiving Party may retain one copy solely for the purpose of monitoring the surviving obligations under this Agreement.
7.6. Remedies. The Receiving Party acknowledges that any actual or threatened breach of this Section 7 may cause the Disclosing Party immediate and irreparable harm that cannot be adequately compensated by monetary damages, and therefore agrees that the Disclosing Party shall be entitled to seek equitable and injunctive relief for actual or threatened breach of this Agreement in addition to any other remedies available at law or equity.
7.7 Rights in Confidential Information. Each Party retains all right, title and interest in and to its Confidential Information. This Agreement does not and shall not be construed to give the Receiving Party any right to license, by implication or otherwise, to any Confidential Information or any intellectual property or other rights owned by or licensed to the Disclosing Party, except the right to use Confidential Information solely for performance of the obligations of this Agreement. The Disclosing Party may freely transfer, disclose and/or use its Confidential Information for its or other purposes.
7.8. Restrictions in Confidential Information. TrewPort agrees not to bring to Licensee, or to use in the performance of Services for Licensee, any materials or documents of a present or former client of TrewPort, or any materials or documents obtained by TrewPort from a third party subject to confidentiality obligations, unless such materials or documents are generally available to the public or TrewPort has authorization from such present or former client or third party for the possession and unrestricted use of such materials. TrewPort shall not breach any obligation of confidentiality that TrewPort has to present or former clients, and agrees to fulfill all such obligations during the term of this Agreement.
8.1. OurLimited Warranties. We warrant that we have validly entered into this Agreement and have the legal power to do so. We further represent, covenant and warrant to Licensee that (a) we have all rights to, and Licensee may freely use, practice, reproduce, distribute, make and sell, all Services, without restriction and without infringing or misappropriating any third party intellectual property or other rights; (b) we possess the business, professional and technical expertise and the resources, including without limitation, equipment, facilities and employees to perform the Services under this Agreement; (c) we and all of our personnel shall have or secure and shall use our best efforts to maintain in effect for the term of this Agreement, all permits, licenses, certificates or approvals required by applicable laws to perform the Services in all locations where they are performed; and we shall notify Licensee in the event such permits, licenses, certificates or approvals to perform the Services are modified, revoked, suspended, transferred or otherwise changed such that there is a material adverse effect upon the Services; (d) we have not entered and will not enter into any agreement with, or obligation to, a third party inconsistent, incompatible, or conflicting with its obligations under this Agreement; (e) we have implemented the confidential and security requirements applicable to Confidential Information; (f) we have used commercially reasonable efforts to ensure that no viruses, Trojan horses, disabling code, malware or similar hostile items are coded or introduced into the Services or Software; (g) neither we nor any of our subsidiaries, nor any of our respective directors, officers, employees or agents have taken any action, directly or indirectly with respect to the Services, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended; and (h) subject to applicable law, prior to our personnel performing any services for Licensee and on at least an annual basis thereafter, we will have performed a criminal background investigation on each such employee or contractor in accordance with the Fair Credit Reporting Act and our hiring policies. For any breach of a warranty in this section, your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND SOFTWARE ARE PROVIDED AS IS, AND TREWPORT DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF CONDUCT OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.TREWPORT DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED THEREFROM.
8.4. Promotion Services. From time to time we may invite you to try, at no charge, our new features or services that are not generally available to our customers ("Promotion Services"). You may accept or decline any such trial in your sole discretion. Any Promotion Services will be clearly designated as beta, pilot or by a description of similar import. Promotion Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. PROMOTION SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Promotion Services at any time in our sole discretion and may never make them generally available.
9.1. Indemnification by us. We shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim"), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court approved settlement of, a Claim; provided that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense. In the event of a Claim, or if we reasonably believe the Services may infringe or misappropriate intellectual property rights of a third party, we may in our discretion and at no cost to you (i) modify the Services so that they no longer infringe or misappropriate, without breaching our warranties under “our Warranties” above, (ii) obtain a license for your continued use of the Services in accordance with this Agreement, or (iii) terminate your User subscriptions for such Services upon thirty (30) days’ written notice and refund to you any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination and have no further obligation under this Agreement (notwithstanding Section 11.6, or this Section 9.1). We shall have no obligations arising out of (i) your misuse of the Services, or (ii) your use of the Services in combination with any hardware or software other than the hardware or software with which we have authorized the Services to be used. THIS SECTION 9.1 CONTAINS TREWPORT’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE REMEDY, FOR ANY VIOLATION OF THIRD PARTY RIGHTS BY THE SERVICES.
9.2. Indemnification by you. You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that Your Data, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us; provided that we (a) promptly give you written notice of the Claim Against Us; (b) give you sole control of the defense and settlement of the Claim Against Us (provided that you may not settle any Claim Against Us unless the settlement unconditionally releases us of all liability); and (c) provide to you all reasonable assistance, at your expense.
10.1. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, EITHER PARTY’S BREACHES OF SECTION 7, EITHER PARTY’S BREACHS OF SECTION 6, OR USE OF THE SERVICE OR SOFTWARE OR ANY PART HEREOF EXCEPT AS EXPRESSLY PERMITTED HEREBY, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT, ANDNEITHER PARTY’S AGGREGATE LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE INCIDENT, OR, WITH RESPECT TO AGGREGATE LIABILITY, THE SIX (6) MONTHS PRECEDING THE INCIDENT THAT RESULTS IN AGGREGATE LIABILITY TO EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN SUCH SIX (6) MONTH PERIOD. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, 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.
11.1. Term of Agreement. This Agreement commences on the date you accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated (the “Term”).
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter). We will provide three (3) weeks’ notice to you in advance of the relevant subscription term end-date, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 5% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by you, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
11.5. Surviving Provisions. Section 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). All notices to be sent to TrewPort shall be sent to: TrewPort Technologies, Inc., 19925 Stevens Creek Blvd., Suite 100, Cupertino CA 95014, attention Legal Notices, with a copy to legalnotices@TrewPort.com. All notices to be sent to you shall be at your address contained in TrewPort’s records, and you shall update your address with TrewPort in accordance with this Section 12.1.
12.2. Governing Law and Jurisdiction. This Agreement shall be interpreted in accordance with the laws of the State of California, United States of America, without regard to its choice of laws rules and without regard to the United Nations Convention on the International Sale of Goods. The state courts located in Santa Clara, California, United States of America, or the federal courts located in San Francisco, California, United States of America, shall have exclusive jurisdiction to decide all disputes relating to or arising out of this Agreement.
12.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13.1. Export Compliance. The Services and Software, and any other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall comply with all export laws and regulations of the United States and other jurisdictions and shall not permit Users to access or use Services or Software in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department (compliance@TrewPort.com).
13.3. 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.
13.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.6. 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.
13.7. Attorney Fees. You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 5.2 (Invoicing and Payment).
13.8. 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, to its Affiliate or 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. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.9. 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 in hard copy by the party against whom the modification, amendment or waiver is to be asserted. No electronic communication including, without limitation, electronic mail, text message, or social network posting, shall be effective in connection with modifying, amending or waiving any aspect of this Agreement. However, 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 your purchase order or other order documentation (excluding Order Forms), regardless of when your documentation is delivered, shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.