iSpring Web Services Subscription Agreement

ATTENTION: THIS IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY BEFORE USING ISPRING WEB SERVICES AND PROGRAMS ("SERVICES"). YOU (THE “CUSTOMER”) HEREBY ASKED TO ACCEPT THESE TERMS AND CONDITIONS OF ISPRING WEB SERVICES SUBSCRIPTION AGREEMENT (THE "AGREEMENT") WHICH WILL GOVERN YOUR PROVISION OF MATERIAL TO ISPRING SOLUTIONS AND ITS AFFILIATES FURTHER DEFINED HEREIN AS “LICENSOR” AND YOUR USE OF THE LICENSOR WEB SERVICES AND PROGRAMS. BY SIGNING AN ORDER FORM OR BY CLICKING THE BUTTON WHILE REGISTERING YOUR ISPRING ACCOUNT, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU ASSERT THAT YOU HAVE THE AUTHORITY TO BIND STATED ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO STATED ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE AND ACCEPT THE TERMS, YOU HAVE NO RIGHT TO USE THE WEB SERVICES AND PROGRAMS.

AS A CUSTOMER YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR TO LICENSOR, EXCEPT WITH LICENSOR’S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

1. Definitions

“Affiliate” means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with the subject entity; “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

“Content” means all visual, written or audible data, information or material including, without limitation: documents, spreadsheets, text messages, form entries, web pages, and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer or the User.

“Controller” means the entity which determines the purposes and means of the processing of personal data as defined in the GDPR.

“Customer” means the individual or the legal entity who activates Services provided by Licensor and assumes payment responsibility for the Licensor.

“Customer Data” means electronic data and information submitted by or for Customer to the Services or collected and processed by or for Customer using the Services, excluding Content.

“Documentation” means the user documentation and associated materials or files related to the Services and provided in written, “online” or electronic form.

“DPA” means the Data Processing Agreement between Customer as Controller and Licensor as Processor.

“Data Protection Laws and Regulations” means all laws and regulations, including but not limited to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (General Data Protection Regulation, “GDPR”).

“Effective Date” means the date stated in the Order Form, or if applicable during sign-up, or in any other form.

“Initial Term” means the initial contract period during which the Customer subscribes to the Services.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form(s)” means the initial order form and/or order confirmation and any subsequent order forms and/ or order confirmations evidencing Subscription term, Initial Term, the number of Users, applicable fees, payment terms, etc. Each such Order Form shall form an integral part of this Agreement. In the event of conflict between the terms of an Order Form and the terms of this Agreement, the terms of the Order Form shall prevail.

“Processor” means the entity which processes personal data on behalf of the Controller as defined in the GDPR.

“Renewal Term(s)” means successive renewal periods during which the Customer subscribes to the Services.

“Services” means the at all times current version of the web services, associated software, and other services related thereto provided to the Customer by Licensor in accordance with this Agreement. The Services are offered as a Software as a Service. In addition, the Services may include additional services and add-ons, including third party software, as agreed between the Customer and Licensor on a Subscription or case-by-case basis.

“Software” means software programs contained on or available through the Services.

“Terms of Use” means the terms and conditions, available at the Website https://www.ispringsolutions.com/legal/terms_of_use.html, to which all Users agree by completing the user registration form (creating a user account).

“Trial Service” means a Service, which is provided free of charge or which is under development or evaluation and is marked “free”, “demo”, “trial”, “beta” or “evaluation” (or a similar designation).

“Use” or “Usage” means accessing and using the Services, downloading any products or uploading any material associated software, and other services related thereto.

“User(s)” means all individuals who are authorized by Customer to use the Services, for whom Customer have purchased the Services, and for whom Customer (or Licensor at Your request) has supplied a user identification and password. Users may include, for example Customer’s employees, consultants, contractors and agents and third parties with which Customer transacts business.

“User Data” means electronic data and information submitted by or for any User to the Services or collected and processed by or for any User using the Services, excluding Content.

“Website” means Licensor’s web site at www.ispringsolutions.com.

2. Amendment

2.1. This Agreement, except for the DPA, may be amended by Licensor at any time by providing the new terms and conditions for Customer to accept available on the Website or when Customer next logs in to the Services. Additionally, please check the Terms of Use published on the Website at https://www.ispringsolutions.com/legal/terms_of_use.html regularly to ensure that you are aware of all terms governing your use of the Website.

2.2. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the amendment being published on the Website, provided that the changes have an adverse effect, that could not be considered as minor, on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions.

2.3. Licensor reserves the right to make changes or updates with respect to or in the content of the Services or the format thereof at any time without notice. Licensor reserves the right to terminate or restrict access to the Services for any reason whatsoever at its sole discretion.

3. Warranties and Disclaimers

3.1. LICENSOR WARRANTS TO THE CUSTOMER THAT THE SERVICES WILL PERFORM SUBSTANTIALLY AND MATERIALLY IN ACCORDANCE WITH ITS DOCUMENTATION AVAILABLE ON THE WEBSITE, UNDER NORMAL USE AND CIRCUMSTANCES, AND FOR THE PURPOSE INTENDED. THIS WARRANT DOES NOT APPLY TO TRIAL SERVICES.

3.2. ALL CONTENT, SERVICES AND SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE." LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OR RELIABILITY OF RESULTS FROM USE OF THE SERVICES, THAT THE SERVICES WILL MEET SPECIFIC REQUIREMENTS, THAT THE SERVICES WILL BE UNINTERRUPTED, COMPLETELY SECURE, FREE OF SOFTWARE ERRORS, OR THAT DEFECTS AND DEFICIENCIES IN THE SERVICES WILL BE CORRECTED OR AS TO THE OPERATION OF THE SERVICES.

3.3. The Services may contain references to specific Licensor products and services that may not be (readily) available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country.

4. Limitation of Liability

4.1. Subject to the limitations set forth in this Agreement, each Party shall only be liable for direct damages.

4.2. IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION), UNDER ANY THEORY OF LIABILITY, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THE SERVICES, THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THE SERVICES ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER OR USER TRANSMISSION OR DATA, ANY INFORMATION THAT IS SENT OR RECEVIED, OR NOT SENT OR RECEIVED, ANY FAILURE TO STORE DATA, ANY LOSS OF DATA, LOSS OR DAMAGE TO FILES, LOSS OR DAMAGE TO THE CONTENT, ANY SERVICES AVAILABLE THROUGH THE SERVICES THAT ARE DELAYED OR INTERRUPTED, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST LICENSOR PERTAINING TO OR IN CONNECTION WITH THE SERVICES OR THE WEBSITE MUST BE COMMENCED AND NOTIFIED TO LICENSOR IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.

4.3. In the event of major defects that seriously impede the Customer’s use of the Services and that are attributable to Licensor, Licensor shall make commercially reasonable efforts to rectify such defect. In the absence of intent or gross negligence by Licensor, Licensor otherwise assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Customer in accordance with the instructions announced by Licensor and within a reasonable time of the discovery of the defect.

4.4. The Customer shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by Licensor.

4.5. Each party’s liability under this Agreement, including the DPA, shall, except for what is stated under Sections 7, 8.4, 14.2, 19, 25 or Customers liability as Controller under the DPA and GDPR, under all circumstances be limited to direct losses in an amount corresponding to the agreed fees paid by the Customer for the Services during the period of twelve (12) months immediately prior to the breach of contract that entitles a party to damages. The foregoing shall not limit the Customer’s payment obligations under Section 14 below.

4.6. Some jurisdictions do not allow the exclusion of implied warranties or limitations therefore, the above limitations may not apply to Customer.

5. License Grant

5.1. Subject to the terms and conditions of this Agreement or/and the Order Form, Licensor hereby grants to the Customer a non-transferable, non-exclusive, non-sublicensable limited term world-wide right and license for the Customer and Users to access and use the Services for Customer’s own projects.

5.2. Licensor reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time with or without prior notice.

5.3. Licensor undertakes, in its sole discretion, to adopt commercially reasonable measures in order to ensure that the Services are available over the Internet around the clock, seven (7) days a week. Licensor shall be entitled to take measures that affect the aforementioned accessibility where Licensor deems such to be necessary for technical, maintenance, operational, or security reasons. The Customer is aware and acknowledges that the Customer’s access to the Internet cannot be guaranteed and that Licensor shall never be liable for deficiencies in the Customer’s own Internet connections or equipment.

5.4. The Customer shall be entitled, with or without compensation from Users, to provide Users with access to the Customer’s Content and the Services provided by Licensor. The Customer is aware of and acknowledges that the Customer is fully liable for the Users to whom the Customer affords access to the Services. The Customer shall not charge a User any fee for its use of the Services in excess of the Customer’s direct costs to Licensor for such User’s participation.

5.5. Licensor shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement. Licensor shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.

5.6. Customer Support. Licensor will use commercially reasonable efforts to provide Customer with email and telephone support and maintenance services for the Services in accordance with its standard practices and Software Maintenance and Support Services Agreement (“Maintenance and Support Services”) available at http://www.ispringsolutions.com/maintenance-and-support-services-agreement. Customer may extend the Maintenance and Support Services, as available, by signing up and paying the appropriate annual subscription and fees to Licensor.

6. Account Terms

6.1. Subscriptions. Unless otherwise provided in the applicable invoicing terms or an Order Form, a) Services are purchased as subscriptions, b) subscription may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscription is added, and c) any added subscriptions will terminate on the same date as the underlying subscriptions.

6.2. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the applicable invoicing terms or an Order Form. Unless otherwise specified, a) a quantity in the invoicing terms refers to Users, and the Services may not be accessed by more than that number of Users, b) a User’s password may not be shared with any other individual, and c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services with prior notice to the Licensor. If Customer exceeds a contractual limit of Users, Customer will execute invoicing terms for additional quantities of the applicable Services promptly upon Licensor’s request, and/or pay any invoice for excess Usage in accordance with Section 17.

7. Customer Obligations

7.1. The Customer shall always comply with the security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on the Website, or in any other manner. The Customer shall also be responsible for notifying Users of such regulations and also the User’s fulfilment regarding such regulations.

7.2. The Customer shall ensure that all details provided regarding the Customer’s personal data, contact information, billing information (such information being “Customer Data”) and User Data, and where applicable, are correct, true, accurate, current and complete and undertakes to update such information as soon as possible when changes to such information occurs. If Customer or any User provide any information that is untrue, inaccurate, not current or incomplete, or Licensor has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Licensor has the right to suspend or terminate Customer’s or that User’s account and refuse any and all current or future use of the Services, or any portion thereof.

7.3. The information Customer or User provide to Licensor during the Service's registration process will help in offering content, customer service, and network management. For additional information on how Licensor uses Customer’s and User’s information, please see the Licensor’s Privacy Policy at https://www.ispringsolutions.com/company/policy/privacy.html.

7.4. The Customer shall be responsible for the activities conducted by the Customer and the Users, including a minors who are at least 16 years old, within the Services and shall use the Services in compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall be the sole responsibility of the Customer.

7.5. The Customer shall be responsible for monitoring its Content and shall be liable vis-à-vis Licensor for ensuring that Content transferred to or handled within the Services which is processed by the Customer and/or Users does not infringe any third party rights nor in any other manner violates governing legislation, and that the Customer and Users possess such necessary licenses from third parties as may be required in order to process the Content/use the Services.

7.6. The Customer undertakes to use the Services in such a manner that such use does not prevent or disrupt other computer communications or mobile telephone communications or prevent or disrupt the equipment employed in order to provide and use the Services.

7.7. The Customer is aware of and acknowledges that it is not permitted to use the Services in order to gain material in violation of applicable national law.

7.8. The Customer undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.

7.9. The Customer undertakes not to provide access to the Services to anyone else than Users who have completed the registration form and thereby agreed to this Agreement. User accounts cannot be shared or used by more than one (1) individual User, a single User account shared by multiple people is not permitted. The Customer is responsible for managing the Users right to use the Services.

7.10. The Customer shall remain liable for the Users’ use of the Services under this Agreement and ensure that Users perform their obligations towards Licensor. To the extent the Customer is unable to perform an obligation on behalf of a User or is unable to cause the User to perform the same, the Customer shall indemnify Licensor insofar as Licensor incurs any loss, provided that such loss is related to the non-performance by the User of its obligations to Licensor.

7.11. The Customer shall defend and indemnify Licensor for any claim, suit or proceeding brought against Licensor by Users and/or third parties arising out of or connected to Content processed by Users/the Customer within the Services or for which the User/Customer is otherwise responsible, unless Licensor is liable for such claim in accordance with the provisions of Section 4.

7.12. Customer may create separate User accounts for as many Users as Customer plan allows. User account means a unique account established by Customer in order to gain access and utilize the Services under Customer account by Users.

7.13. The Customer is obligated to notify Licensor regarding any suspected breach of these provisions.

8. Security, Passwords

8.1. The Customer or each User will receive a password and account designations upon completing the registration process. Customer or any User are solely responsible for maintaining the confidentiality of Customer’s or User’s account(s) and password(s), and are fully responsible for all activities that occur under Customer’s or User’s password or user identification.

8.2. The Customer shall ensure that User identities, passwords, and equivalent obtained by the Customer in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Customer shall be liable for any unauthorized use of the Services. Licensor shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.

8.3. Where it is suspected that any unauthorized person has become aware of a user identity and/or password, the Customer shall immediately inform Licensor thereof and also change such user identity and/or password.

8.4. The Customer shall be liable for losses or damage incurred by Licensor where the Customer intentionally or negligently reveals a User identity/password to a third party or where a User identity and password otherwise become known to an unauthorized party, unless the Customer notifies Licensor immediately upon suspicion that such has occurred.

8.5. Licensor shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards.

9. Usage Restrictions

Customer will not (a) make the Services available to, or use the Services for the benefit of, anyone other than Customers or Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, or (k) access the Services in order to build a competitive product or service, or (l) reverse engineer the Services (to the extent such restriction is permitted by law). Customer may not use the Services for any illegal or unauthorized purpose. Customer must not, in the use of the Services, violate any laws in Customer’s jurisdiction (including but not limited to copyright laws).

10. Trial Services

10.1. If you register on the Website for Trial Services, Licensor will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any purchased subscriptions ordered by you for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. One person or legal entity may not maintain more than one trial account.

10.2. Trial Services are provided strictly “as is”. You may use a Trial Service in a manner consistent with the terms and conditions of this Agreement, but Licensor may, at its sole discretion, disable certain features of a Trial Service and enforce time limits on your right to use the same. In light of the fact that a Trial Service is provided free of charge, Licensor disclaims all warranties, representations, and liabilities as set forth in this Agreement and Licensor shall not be liable for damages of any kind related to your use of a Trial Service.

10.3. ANY DATA YOU ENTER INTO THE SERVICES, ANY CONTENT YOU MAKE AVAILABLE THROUGH THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE FROM LICENSOR A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL SERVICES, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

11. User License; Customer and User Content

11.1. By entering into this Agreement and uploading, sending, providing or otherwise making available Customer’s and User’s Content to Licensor Customer and User are directing and authorizing Licensor to, and granting Licensor a royalty-free, non-exclusive right (the "License") to, host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms based on the Content in order to (i) host the Content on Licensor’s servers, (ii) index the Content; (iii) display, perform and distribute the Content, in whole or in part, in any territory(ies), in connection with Licensor products and Services now existing or services and products hereafter developed. This license gives Licensor the right to display Content via streaming and/or downloading technologies, and to display Content for some fee or for no fee to the end user. Customer hereby represents and warrants that (i) Customer has all the necessary rights, titles, and/or interests (including all proprietary rights) in Content to grant such License; (ii) License, as granted and as used in connection with Licensor Website, Services and products, does not and will not violate any intellectual property rights of any third parties; and (iii) that Customer’s granting of the License and the use of the Content as authorized by the License does not violate any law (including, without limitation, privacy, export control, obscenity and anti-spam laws), (iv) the License does not violate any agreement or order to which Customer is a party or by which Customer or Customer’s assets are bound nor require any consent from any person, entity or government authority and (v) the Content can be used by Customer for any business purposes. Customer further represents and warrants to Licensor the following: (a) Customer is at least 16 years of age if Customer is a natural person; (b) all of the information provided by Customer to Licensor is correct and current (including without limitation information Customer provides in the registration form); (c) the Content is not, in whole or in part, pornographic or obscene; (d) Customer holds and will continue to hold the necessary rights, including but not limited to all copyrights, trademark rights and rights of publicity in and to the Content to enter into this Agreement and to grant the rights granted herein; (e) Customer has the legal right and authority to enter into this Agreement, to perform the acts required of Customer under the Agreement, and to grant the rights and licenses described in this Agreement.

11.2. On occasion, Licensor may ask for Customer’s written permission to use the Content, courses, designs and customizations for promotional and/or marketing purposes.

12. Intellectual Property

12.1. Copyright, trademark and all other proprietary rights in the Services (including but not limited to software, services, audio, video, text, photographs, specific content, products, materials, services or information contained on or available through the Services) rests with Licensor or its licensors. All rights in the Services not expressly granted herein are reserved. Customer agrees not to copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Services except as expressly authorized herein. Except as otherwise provided, the content published through the Services may be reproduced or distributed in unmodified form for personal non-commercial use only. Any other use of the content available through the Services, including without limitation distribution, reproduction, modification, display or transmission without the prior written consent of Licensor is strictly prohibited. All copyright and other proprietary notices shall be retained on all reproductions.

12.2 Licensor hereby disclaims any rights to trademarks, service marks, trade names, logos, copyright, patents, domain names or other intellectual property interests of third parties. All intellectual property interests of third parties listed above are the properties of their respective owners. Licensor disclaims any proprietary interests in the intellectual property rights other than their own.

12.3 Third Party Rights. Licensor’s Website and Services may operate in conjunction with or using certain third party tools, formats, software or products (“Third Party Components”) and Licensor expressly disclaims any liability relating to such functionality. Any Third Party Components incorporated into or accompanying Licensor’s Website and Services is third parties’ intellectual property and is protected by United States, and international copyright laws and applicable treaties. Licensor has obtained such rights, permissions and consents as are necessary for Licensor to use the Third Party Components in conjunction with the Licensor’s Website and Services as licensed by this Agreement. However, all such Third Party Components incorporated into or accompanying Licensor’s Website and Services is or may be subject to a separate software licensing agreement containing separate and discrete terms, conditions and restrictions governing Customer’s right to use the Third Party Components. Customer hereby acknowledges that under this Agreement Licensor provides Customer only with a right of limited use under the terms and conditions of this Agreement. And Customer hereby agrees and confirms to use the Third Party Components only in conjunction with Licensor’s Website and Services, as permitted by this Agreement, and as permitted by the more restrictive of any Third Party Components license agreement applicable to Customer’s and/or Licensor’s use of the Third Party Components. Customer acknowledges the foregoing and agrees to obtain, at Customer’s own expense, all necessary licenses, waivers or consents, for use and operation of such Third Party Components from their respective owners and/or license holders.

13. Unlawful or Prohibited Use

13.1. Customer may not use the Services for any purpose that is unlawful, prohibited by this Agreement, or in any way interferes or attempts to interfere with the proper working of the Services. Customer may not use the Services in any manner that could damage, disable, overburden, or impair the Services, or that interferes with any third party's use and enjoyment of the Services. Customer agrees not to modify or cause to be modified any files that are available in or through the Services and/or use any third-party software that intercepts, "mines," or otherwise collects information from or through the Services. Customer may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Licensor to all users of the Services. Customer shall not institute, assist, or become involved in an attack upon any Licensor server or otherwise attempt to disrupt the Licensor servers.

13.2. ANY ATTEMPT BY CUSTOMER TO DAMAGE LICENSOR SERVERS OR UNDERMINE THE LEGITIMATE OPERATION OF LICENSOR IS A VIOLATION OF CRIMINAL AND CIVIL LAWS AND, SHOULD SUCH AN ATTEMPT BE MADE OR ASSISTANCE FOR SUCH AN ATTACK BE PROVIDED, LICENSOR RESERVES THE RIGHT TO SEEK DAMAGES FROM ANY SUCH USER TO THE FULLEST EXTENT PERMITTED BY LAW.

14. Indemnification

14.1. Customer hereby agrees to indemnify and hold harmless Licensor, its affiliates, officers, directors, agents, and employees, from any expense, loss, claim, damage, fine, penalty or liability, including reasonable fees for attorneys and other professionals, payable under any judgment, verdict, court order or settlement, to the extent resulting from any claim, demand, action, suit, arbitration, or other proceeding initiated by any third party, including the assessment, claim or demand by a governmental agency or entity, arising out of Customer breach of this Agreement and any third party claims arise from Customer’s and User’s Content.

14.2. Licensor shall defend and indemnify Customer from and against any damage, cost and expense (including reasonable attorneys' fees) finally awarded or agreed in a settlement by Licensor as a result of any claim, suit or proceeding brought against Customer based on a claim that the authorized use of the Services furnished by Licensor under this Agreement constitutes an infringement of any third party intellectual property right; provided that Licensor has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defense of any suit, proceeding or settlement and that Customer has not compromised or settled the claim, suit or proceeding without Licensor’s prior written consent, and provided further that Licensor shall have no obligations under this Section 14 to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by Licensor or use of the Service in a manner prohibited under this Agreement, in a manner for which it was not designed where the Services would not otherwise itself be infringing.

14.3. In the event that the Services in such suit or proceeding are held to constitute an infringement, or if in Licensor’s reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, Licensor shall, at its own expense and at its option, either (i) procure for Customer the right to continue the use of the Services, or (ii) replace the Services with non-infringing services of materially equivalent function and performance, or (iii) modify the Services so that it becomes non-infringing without materially detracting from function or performance. Should none of these measures be technically, commercially or economically reasonable to Licensor, then either party may terminate this Agreement. Upon such termination, Licensor shall refund the amount of fees paid in advance in respect of not yet used Services.

15. Term and Termination

15.1. Term of the Agreement. This Agreement shall enter into force upon acceptance by the Customer of these terms and conditions through execution of this Agreement online during Subscription sign-up, or acceptance by the Customer of these terms and conditions in an Order Form, frame agreement, or in any other form and shall continue until all subscriptions hereunder have expired or terminated.

15.2. The Initial Term shall be as specified in the Order form or in the applicable invoicing terms. Except as otherwise specified in the invoicing terms, the Initial Term will be automatically renewed with successive renewal terms at Licensor’s then current terms and conditions unless either party gives the other party a notice of non-renewal at least thirty (30) days of the relevant subscription term. Notwithstanding the above, Licensor may for each Renewal Term increase its fees upon prior notice to Customer (which may be sent by email to the address Customer has most recently provided to Licensor). The Renewal Term is equal to the Initial Term or as otherwise stated in an Order Form or mutually agreed upon.

15.3. Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party for cause, i) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business., ii) 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.

15.4. Termination by Licensor. Notwithstanding anything in Section 15.3. above, Licensor may terminate this Agreement immediately without notice, if Customer breaches its payment or confidentiality obligations under this Agreement.

15.5. Termination by Customer. Customer may terminate this Agreement by providing Licensor with thirty (30) days prior written notice of its intent to terminate.

15.6. Effect on Termination. No refund will be granted for account termination. If this Agreement is terminated by Licensor in accordance with Sections 15.3 and 15.4. above, Customer will pay any unpaid Fees covering the remainder of the term of all invoicing terms. In no event will termination relieve Customer of the obligation to pay any fees payable to Licensor for the period prior to the effective date of termination.

15.7. Upon termination of a Subscription or the Agreement, Licensor shall not be responsible for the Content generated by the Users/Customer within the scope of the Subscription in question or the Services. Accordingly, it is the sole obligation of the Customer to ensure that it possesses the necessary back-up copies, etc. of the Content that it desires to retain when the Subscription is terminated.

15.8. Customer agrees that upon termination or discontinuance for any reason, Licensor is entitled to destroy and delete all information and Content within the Scope of the Subscription in question of the Services. In the event of expiration of the subscription term of a Subscription and in the absence of the Customer’s renewal of the same, Licensor shall be entitled to delete and destroy such Content thirty (30) calendar days following the expiration date.

15.9. Further, Customer agrees that all terminations for cause shall be made in Licensor's sole discretion and that Licensor shall not be liable to Customer or any third party for any termination of Customer’s account or access to the Service.

15.10 Surviving Provisions. The Sections titled “Fees and Payment Terms, Refunds, Upgrading and Downgrading Terms”, “Intellectual Property”, “Confidentiality”, “Warranties and Disclaimers”, “Indemnification”, “Limitation of Liability”, “Effect of Termination”, “Personal Data, Privacy, Disclosure”, “Governing Law” will survive any termination or expiration of this Agreement.

16. Fees and Payment Terms, Refunds, Upgrading and Downgrading Terms

16.1 Invoicing and Payment. Licensor offers the Services for monthly, quarterly or annual fees (the “Fees”) which may be made by the Customer against (a) invoice or Order Form (b) through use of an authorized credit card or, if agreed to by Licensor, by another method of payment.

16.2. The Customer undertakes to make payment of invoices, in the currency stated on the invoice, into the account stated on the invoice.

16.3. The Services provided by the Licensor are billed in advance on a term basis (monthly, quarterly, or yearly). Customer’s authorized credit card will automatically be charged Fees immediately upon upgrading or on the expiration of the Initial Term, if any, whichever is earlier. For any upgrade or downgrade in Service level, authorized credit card that Customer provided will automatically be charged the new rate on Customer’s next billing cycle.

16.4. Payment must reach Licensor in full within thirty (30) days of the issue date of the invoice. Interest on overdue payments shall be payable according to law. If any amount owing by Customer under this Agreement for the Services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts Customer has authorized Licensor to charge to Customer’s credit card), Licensor may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. Licensor will give Customer at least 7 days’ prior notice that Customer’s account is overdue before suspending Services to Customer. In addition, Licensor may terminate a Subscription, delete and destroy the Customer’s Content and to immediately terminate this Agreement in the event of overdue payments in excess of thirty (30) days.

16.5. In the event of early termination of a Subscription, the Services or the Agreement, the Customer shall not be entitled to a refund of any prepaid fees.

16.6. Licensor may charge the Customer an invoicing charge for paper invoices. Licensor shall be entitled to charge a fee for any payment reminders and reserves the right to send the same via e-mail to an invoice reference provided by the Customer. The Customer shall be responsible for the reasonable costs incurred by Licensor when collecting overdue fees.

16.7. Notwithstanding the above, Licensor may for each Renewal Term increase its fees upon thirty (30) days prior notice to Customer (which may be sent by email to the address Customer has most recently provided to Licensor).

16.8. The Services provided by Licensor may be debited to the Customer in advance from the agreed effective date and for the initially subscribed number of Users and the selected period as agreed between the parties. If not otherwise agreed, payment for the Services shall be made against invoice within thirty (30) days. The Subscription may be upgraded by the Customer at any time with additional Users. Actual usage will be calculated and charged retroactively with an additional excess usage fee applied by Licensor. The Fees for actual number of users shall be calculated based on the highest number of actual Users for each thirty-day period or other period agreed between the parties.

16.9. Except as otherwise specified herein or in the invoicing terms, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.

16.10. Upgrading and Downgrading Terms. The Customer may upgrade a Subscription at any time with additional Users as provided. Any added User shall be coterminous with pre-existing Users and services.

The Customer will be charged the new rate according to Fees set by the Licensor, upon upgrading or on the expiration of the initial subscription period, if any, whichever is earlier. For any upgrade or downgrade in Service level, the Customer’s authorized credit card that Customer provided will automatically be charged the new rate on Customer’s next billing cycle.

Downgrading the Service level may cause the loss of the content, features, or capacity of Customer’s account. Licensor does not accept any liability for such loss.

17. Taxes

All disbursements, prices and fees payable to Licensor hereunder are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future, with the sole exception of Licensor’s income taxes, Licensee shall cover all fees and processing expenses for charge backs, frauds, and refunds. Notwithstanding anything to the contrary herein, Licensee shall be solely responsible for any value added taxes collections, payments and related registrations arising in any way out of or relating to this Agreement. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, Customer will obtain and provide Licensor with such certificate, document or proceeding.

18. Software

18.1. Software made available for downloading from or through the Services licensed subject to the terms of the end use license agreement, if and as applicable. Both the Software and any accompanying documentation made available through the Services is the copyrighted work of Licensor. Except as set forth in the applicable end user license agreement, the Software is made available for use by end users only and any further copying, reproduction or redistribution of the Software is expressly prohibited. Customer must agree to the terms of the applicable end user license agreement to download or order products from the Services.

18.2. Customer may not use, copy, republish, frame, emulate, clone, download, transmit, rent, lease, loan, sell, assign, modify, distribute, license, sublicense, decompile, disassemble, create a derivative work otherwise reverse engineer, or transfer the licensed Software except as expressly authorized herein or in the applicable end user license agreement. Any such unauthorized use shall result in immediate and automatic termination of this license and may result in criminal and/or civil prosecution.

18.3. WARRANTIES, IF ANY, WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SET FORTH IN THE APPLICABLE END USER LICENSE AGREEMENT. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL FURTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.

19. Confidentiality

19.1. “Confidential Information” means all 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. Customer Confidential Information includes Customer and User Data; Licensor Confidential Information includes the Services and content available through the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms or invoicing terms (including pricing), 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 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, or (iv) was independently developed by the Receiving Party.

19.2. The parties undertake not to disclose to any third party, or otherwise make available, the Confidential Information received by the other party within the scope of the Agreement. The duty of confidentiality shall remain in force notwithstanding the termination of the Agreement.

19.3. Licensor shall be entitled to review Content which is publicly posted through the Services’ web publication features. Licensor also reserves the right to analyze usage patterns in an aggregated form.

19.4. Except for Content mentioned above and other than pursuant to the Customer’s instructions, legal provisions, public authority regulations or court orders, Licensor shall not be entitled to review Content processed by the Customer via the Services.

20. Personal Data, Privacy, Disclosure

20.1. Licensor will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer and User Data, as described in the security whitepaper available by request of the Customer. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Licensor personnel except (a) to provide the purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 21 below, or (c) as Customer expressly permits in writing.

20.2. In order for the Customer to be able to use the Services, the Customer must provide certain data to Licensor regarding the Customer’s representatives, including but not limited to full name, e-mail address, telephone number, the name of the Customer’s organization and the title the Customer’s representative. Following receipt of such data, Licensor will process the same using automatic data processing in order to enable Licensor to administer and otherwise perform its obligations within the scope of the Services and to ensure that unauthorized persons do not gain access to the Services.

20.3. In addition, in order for the Customer to be able to use the Services, the Customer must also allow Licensor to store and retrieve session information on the Customer’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorized persons do not gain access to the Services.

20.4 The Customer will be responsible for determining the purposes and means of the processing of the Content and any User personal data provided by Users of the account, and Customer shall when considered to be the Controller, in its use of the Services, process personal data of the Users in accordance with the requirements of Data Protection Laws and Regulations. Customer shall in such event has the sole responsibility for the accuracy, quality, and legality of personal data and the means by which Customer acquired personal data.

20.5. The Customer is aware of and acknowledges that Users must provide personal data in order to gain access to the Services. Customer shall use its best endeavors to ensure that such personal data is provided by the Users. If third party applications are made available by Licensor within the Services, or if a User initiates or accepts to copy or export Content or personal data from the Services to a non-Licensor application, Customer acknowledges that Licensor may allow such third party application provider access to Content and personal data as required for the interoperation of such embedded, linked or interacted applications.

20.6. If Licensor at any time has access to personal data stored in the Customer’s account owned by the Customer, Licensor is considered to be a Processor to Customer, Licensor shall fulfil its obligations as a Processor in accordance with the GDPR, and will furthermore accept such assignment based on the instructions, terms and conditions in the DPA, executed by the parties, which shall form an integrated part of this Agreement.

20.7. Licensor’s information gathering and dissemination practices are set forth in the Licensor’s Privacy Policy, which is available at https://www.ispringsolutions.com/company/policy/privacy.html.

20.8. The Customer accepts that Licensor is not obliged to disclose information to Customer in respect of individual Users use of the Services.

20.9. The Customer agrees that Licensor may disclose the fact that the Customer is a paying customer of Licensor. In relation thereto, the Customer agrees that Licensor may use the Customer’s name and logo to identify the Customer as a customer of Licensor on the Website, and as part of a general list of Licensor’s customers for use and reference in Licensor’s promotional and marketing literature.

21. Disclosure Legally Compelled or Required

In the event that the receiving party or any of its representatives becomes legally compelled, required or requested by an applicable court or regulatory agency to disclose any Confidential Information, the receiving party will provide the disclosing party with prompt written notice, unless providing such notice would violate applicable law or regulation, so that the disclosing party may seek a protective order or other appropriate remedy. If the disclosing party seeks such an order, the receiving party will provide such cooperation as the disclosing party reasonably requests and/or waive compliance with the provisions of this Agreement. Notwithstanding the foregoing, if a party is required by applicable securities laws, rules or regulations or stock exchange requirements to disclose or describe Confidential Information, it will use reasonable efforts to notify the disclosing party before complying with such laws, rules and regulations. The receiving party agrees to furnish, disclose or describe only that portion of the Confidential Information which is legally required (in the opinion of its counsel).

22. Modifications to the Service

Licensor reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Licensor websites, Licensor channels or the Services (or any part thereof) with or without notice. Customer agrees that Licensor will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of the Services.

23. Force Majeure

23.1 A party shall be released from liability in damages and other sanctions where the performance of a specific obligation (other than for delay in the payment of amounts due and payable hereunder and the maintenance of confidentiality) is prevented or rendered onerous due to circumstances beyond a party’s control and which could not reasonably have been foreseen. Such force majeure events include, inter alia, labour conflicts, lightning, fire, decisions of public authorities or other public regulations, errors in another operator’s network, delays in services from subcontractors due to events as stated above, general scarcity of transport, goods, or energy, or other similar circumstances.

23.2 Where a party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either party shall be entitled to terminate the Agreement in writing without any obligation to pay compensation.

24. Feedback

Customer may from time to time provide suggestions, comments or other feedback to Licensor with respect to any product, material, software or information provided by Licensor (hereinafter "Feedback"). Customer agrees that all Feedback is and shall be entirely voluntary and shall not, absent separate agreement, create any confidentiality obligation for Licensor. However, Licensor shall not disclose the source of any feedback without the providing party's consent. Licensor shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind to Customer. The foregoing shall not, however, affect either party's obligations hereunder with respect to the information protected pursuant to the privacy policy.

25. Assignment

This Agreement, the License, rights and obligations provided hereunder may not be assigned, in whole or in part, without the prior written consent of Licensor. Any attempt of assignment without such consent shall be null and void and of no force and effect.

26. Publicity

The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. In addition, neither Party shall issue such publicity and general marketing communications concerning their relationship without the prior written consent of the other Party (not to be unreasonably withheld or delayed) and neither Party shall disclose the terms of this Agreement to any third party other than its outside counsel, auditors, and financial and technical advisors, except as required by law), provided that, Licensor will have the right to identify You as a commercial licensee on Licensor’s website and general marketing communications.

27. Governing Law; Export Controls

27.1. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its principles of conflict of laws. Customer agrees to the exclusive jurisdiction of the courts of the Commonwealth of Virginia for any claim or cause of action arising out of, or relating to or in connection with this Agreement or the Services, provided that such exclusivity does not apply to legal actions initiated or brought by Licensor.

27.2. The Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services. Without limiting the foregoing, (i) the Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction (iii) and that the Service may not be exported or re-exported into (or to a national or resident of) any U.S. embargoed countries.

27.3. Licensor does not bear any responsibility nor assumes any risks if by any reason the Services, a product or a service made available through the Services breaches national law of any state. Those who access the Services do so on their own initiative and are responsible for compliance with their national laws.

© 2018 iSpring Solutions, Inc. and their licensors. All rights reserved. The Websites, including the Services, Software and any accompanying Documentation are the copyrighted property of iSpring Solutions Inc. and/or their licensors and protected by copyright laws and international intellectual property treaties. iSpring and related logo, and all related product and service names, design marks and slogans are the trademarks and/or registered trademarks of iSpring Solutions Inc. and/or their licensors. All other product and service marks contained herein are the trademarks of their respective owners. Any use of the iSpring Solutions Inc. or third party trademarks or logos without the prior written consent of iSpring Solutions Inc. or the applicable trademark owner is strictly prohibited.