THIS AGREEMENT GOVERNS YOUR USE OF ANY SERVICES WHICH MAY BE PROVIDED BY DDC INCLUDING ANY FREE SERVICES OR FREE TRIALS OF PAID SERVICES. IF YOU PURCHASE OR SUBSCRIBE TO OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT EITHER BY SIGNATURE, BY CLICKING A BOX OR A BUTTON OR BY EXECUTING AN ORDER FORM WHICH REFERENCES THIS AGREEMENT OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 4 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS 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 LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 1, 2010. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
- Technical Support
- Modification of this Agreement
- Free Trial Periods
- Purchased Services
- Use of the Services
- Third-Party Providers
- Fees and Payment for Purchased Services
- Proprietary Rights
- Warranties and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Term and Termination
- Notices, Governing Law and Jurisdiction
- General Provisions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
“Services” means any of the Free Services or Purchased Services defined in Section 2 or any combination thereof that are ordered by You as part of a 30-day free trial or under an Order Form, including associated offline components but excluding Third Party Applications and software provided by You.
“Support Hours” means the times Remote Technical Support is available from Us as defined in Section 3.
“Third-Party Services” means hardware, internet connections, Web-based applications and offline software products that are provided by third parties, and sold to the customer by DDC as an agent or reseller.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us” or “Our” means The Digital Design Company, LLC doing business as Durable Data Corporation described in Section 16 (Notices, Governing Law and Jurisdiction).
“You” or “Your” 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 to the Purchased Services.
2.1. Services Included. The services covered by this Agreement include both free services that DDC and its affiliates (referred to together herein as “we” or “us”) make available for no fee (the “Free Services”), and services that we make available for a fee (the “Paid Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services.” Each Free Service and Paid Service is referred to individually as a “Service.”
2.2. Free Services. The Free Services include the Total Cost of Ownership Calculator, Free Trials of Paid Services if provided, the Helpdesk, links to downloadable software and all other web services and technical support services that we make available to you free of charge on the DDC-branded web sites accessible from www.DDC.net (collectively, the “DDC Website”), except those web services for which we specifically provide a separate customer agreement.
2.3. Purchased Services. The Purchased Services include all web services and any related support services that we make available to you for a fee via the DDC Website or any Order Form, except those web services for which we specifically provide a separate customer agreement. Our Purchased Services include, but are not limited to:
- DDC DuraVault™
- DDC DuraMail™
- DDC DuraDesk™
- DDC DuraDesk Mirage ™
- DDC DuraServer™
- DDC Office In A Box™
- DDC Office In A Cloud™
- DDC Web Hosting
- DDC DNS Service
- DDC Durable Data Onsite Storage
- Dial-Up Internet Connectivity
- Broadband Internet Connectivity
- DDC Premium Support
- DDC Consulting Services
We may, in our sole discretion, (i) begin charging fees for a Free Service, in which case such Service will thereafter be deemed a Purchased Service, or (ii) cease charging fees for a Purchased Service, in which case such Service will thereafter be deemed a Free Service.
3. TECHNICAL SUPPORT
3.1. Free Technical Support. Remote technical support services will be provided free of charge when the problem exists in a Service or Device provided by DDC under the terms of this Agreement. Premium technical support will be provided with Your authorization when the problem is caused by any device, software product, network transmission system or third-party product not provided by DDC, or any time that On-Site support is provided.
3.2. Support Hours. Free and Premium technical support may be provided between the hours 08:00 and 20:00 Central Standard Time, Monday through Friday, excluding the following Holidays (“Support Hours”):
- New Years Day
- Presidents Day
- Good Friday
- Memorial Day
- Independence Day
- Labor Day
- Veterans Day
- Thanksgiving Day
- Day After Thanksgiving
- Christmas Eve
- Christmas Day
3.3. Electronic Support. Electronic Support is provided electronically via telephone, e-mail and web form submission, and covers problem reporting and resolution as well as questions concerning the operation of the Devices and their usage. If DDC should determine that a problem falls outside the terms of this Agreement, DDC will provide advice to guide the Client to a resolution. Should this agreement stipulate a number of hours of technical support are included per calendar month, Electronic Support is debited from the hours of technical support specified herein in 1/2-hour increments.
3.4. Remote Access Support. Remote Access Support (RAS) requires the Client to allow authorized DDC personnel remote access to the Devices via Remote Desktop, SNMP, telnet/ssh, and direct-dial or similar means, and may require the Client to have or obtain hardware, software and connectivity services specified by DDC. RAS constitutes communication with the Client’s Devices at an Administrative privilege level and allows DDC to diagnose, remedy and/or control the Devices remotely. RAS will be provided in cases where Electronic Support is insufficient to resolve a request for support regarding a problem. Should this agreement stipulate a number of hours of technical support are included per calendar month, RAS is debited from the hours of technical support specified herein in 1/2-hour increments.
3.5. On-Site Support. On-site support will be provided in cases where Electronic and Remote Access Support are insufficient to resolve a request for support regarding a problem. Unless otherwise specified in the accompanying Service Order, On-site Support will be billed or debited from the Client’s account at a rate of $125 US Dollars per hour. On-Site Support is billed in one-hour increments, including travel time to the Client’s location.
4. MODIFICATION OF THIS AGREEMENT
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the DDC Website or our “Customer Center” pages accessible at https://customer.ddc.net. The revised terms shall be effective as follows:
• if the revised terms are otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the DDC Website and the Customer Center web pages regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
5. FREE TRIAL PERIOD
We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the thirtieth day after Your acceptance of this Agreement, (b) the number of days specified on the trial registration web page, or (c) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL PERIOD TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM PROFESSIONAL EDITION TO STANDARD EDITION OR FROM STANDARD EDITION TO PERSONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 12 (WARRANTIES AND DISCLAIMERS), DURING ANY FREE TRIAL OR USE OF THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
6. PURCHASED SERVICES
6.1. Provision of Purchased Services. We shall make the Purchased 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.
6.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, 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 designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
6.3 Onsite Services. Some services may include hardware and software provided by DDC that are located on Your premises. In such cases, You shall at Your own expense provide all necessary preparations required to comply with DDC’s installation and maintenance specifications. You shall be responsible for the cost of relocation of Services once installed by DDC, and shall provide to DDC and to suppliers of communications lines reasonable access to Client’s premises to perform any acts required by this Agreement. You shall properly use equipment and communications lines provided by DDC and its designated suppliers, and shall surrender the equipment and communications lines to DDC upon termination. You shall be liable for damages to Services caused by negligence or willful acts of Client’s officers, employees, agents, or contractors for loss through theft or vandalism of Services on Client’s premises, and for damages caused by the use of equipment or supplies not provided by DDC. You shall maintain proper insurance coverage for t he entirety of Our equipment located at Your premises.
6.4 Equipment or Software Not Provided by DDC. DDC shall not be responsible for the installation, operation or maintenance of equipment or software not provided by DDC; nor shall DDC be responsible for the transmission or reception of information by equipment or software not provided by DDC. Client shall be responsible for the use and compatibility of equipment or software not provided by DDC. In the event that Client uses equipment or software not provided by DDC that impairs the Client’s use of Services, Client shall nonetheless be liable for payments for Services. Upon notice from DDC that the equipment or software not provided by DDC is causing or is likely to cause hazard, interferences or service obstruction, Client shall, if necessary, pay DDC to troubleshoot difficulties caused by the equipment or software not provided by DDC. DDC shall not be responsible if any changes in Services cause equipment or hardware not provided by DDC to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provided by DDC. The following terms apply specifically to scenarios where Client provides the router that will interface with DDC’s router. DDC includes the terms and conditions so that DDC can control the performance of DDC link on an end-to-end basis and protect DDC’s network. DDC’s intent is to manage the router on a cooperative basis with Client. DDC reserves the right to allow or refuse the make, model and/or software revision of Client provided routers to be used as the gateway to DDC. DDC and Client will cooperatively set the initial configuration for the router’s interface into DDC. Client must permit DDC to access the router’s SNMP variables, and Client must, at DDC’s request, permit one or more DDC network management systems to be the recipient of SNMP TRAP messages. Client must offer DDC read/write access to the router’s configuration tables. Either Client or DDC can administer the access controls (i.e., login and password) to the router’s configuration editor, DDC will only modify that part of the router’s configuration that controls the interface into DDC’s network.
6.5 Co-Located Equipment. If You choose to co-locate equipment at DDC’s facilities, DDC will provide physical access during normal business hours by appointment. To schedule an appointment, You should contact DDC by telephone or via email at firstname.lastname@example.org. DDC will use every reasonable precaution to protect Users equipment co-located at DDC facilities but does not accept any financial responsibility for damage to or loss of Users equipment. DDC will not carry insurance for User’s equipment.
7. USE OF THE SERVICES
7.1 Our Responsibilities. We shall: (i) provide to You remote support for the Purchased Services at no additional charge during Support Hours, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services or by email notification to You and which We shall schedule to the extent practicable during the weekend hours from 8:00 p.m. Central time Friday to 5:00 a.m. Central time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
8. THIRD-PARTY PROVIDERS
8.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications, Devices and Services for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party software, computers, routers, data connections, and consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase from DDC of third-party products or services is required to use the Services.
8.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications or Services for use with Services, or request DDC to install or enable Third-Party Applications or Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
8.3. Microsoft and Enabling Software. Service features and Services that rely on Microsoft Software depend on the continuing availability of the Microsoft Service Provider License Agreement program for use with the Services. In addition, some services may depend upon certain software or services from VMware and other providers. If Microsoft Inc. ceases to make the SPLA program available on reasonable terms for the Services, or if other key software or service becomes unavailable on reasonable terms, We may cease providing such Services or Service features without entitling You to any refund, credit, or other compensation.
9. FEES AND PAYMENT FOR PURCHASED SERVICES
9.1. Rates & User 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 quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) 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.
9.2 Rate & User Fee Changes. DDC will provide sixty (60) days written notice of changes in base prices. In the event of increases in base prices, Client has fourteen (14) days from the date of the effective increase to provide DDC with a written request to terminate service and incur no termination liability. Otherwise, Client’s existing Orders will be billed according to the new base prices. Client will be responsible for all charges for up to thirty (30) days from the date notice is received.
9.3. Invoicing and Payment. All accounts are billed on the 15th of each month and are due at DDC offices no later than the 5th of the following month. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 15.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. You are responsible for maintaining complete and accurate billing and contact information in the Services.
9.4. 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 2% of the outstanding balance per month, or $5.00, whichever is greater, 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 9.3 (Invoicing and Payment).
9.5. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), 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 Our services to You until such amounts are paid in full.
9.6. Payment Disputes. We shall not exercise Our rights under Section 9.4 (Overdue Charges) or 9.5 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
9.7. 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, unless 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 it based on Our income, property and employees.
10. PROPRIETARY RIGHTS
10.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
10.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (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 the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
10.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You are responsible for unauthorized access of Your transmission facilities and Your premise equipment; and for unauthorized access to or alteration, theft or destruction of Your data files, programs, procedure or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of DDC’s negligence. You have access to Your data at all times to manually copy said data to Your own storage systems. You can also arrange for DDC to systematically copy Your data to a location of Your choice for an additional fee. You are responsible for determining the accuracy of your data at any location.
10.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
10.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.1. 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 Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include 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.
11.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its 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.
11.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 11.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
11.4. 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.
12. WARRANTIES AND DISCLAIMERS
12.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide, and (ii) subject to Section 8.3 (Microsoft and Enabling Software), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 15.3 (Termination for Cause) and Section 15.5 (Refund or Payment upon Termination) below.
12.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
12.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.4. Information Disclaimer. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DDC OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
12.5. Suitable Uses. NONE OF THE SOFTWARE IS INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
13.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (” Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such 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.
13.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
13.3. Exclusive Remedy. This Section 13 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
14. LIMITATION OF LIABILITY
14.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 9 (FEES AND PAYMENT FOR PURCHASED SERVICES).
14.2. 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.
15. TERM AND TERMINATION
15.1. 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. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
15.2. 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), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
15.3 Early Termination. If you choose to terminate your subscription prior to the end of the current subscription term specified in the applicable Order Form or following automatic renewal for any reason other than a Termination for Cause as specified in section 15.4, then an early termination fee consisting of the total of all discounts applied to the expired portion of the subscription’s Term in consideration of the Term commitment, and 100% of the balance due for the remainder of the current subscription term will become immediately due and payable.
15.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 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.
15.5. 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.
15.6. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, and following your payment of Service data storage charges for the period following termination, payment of any unpaid fees covering the remainder of the term of all Order Forms both prior and after the effective date of termination, and payment in full of any other amounts due us, We will make available to You an FTP site, downloadable archive file, or other electronic transmission containing your data. In some cases, very large data sets may require distribution on physical media. If We determine that physical media is the preferred way to return Your data, You agree to pay for an appropriate Storage Device provided by Us as well as hourly support fees for data preparation, transfer, and validation plus shipping fees. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
15.7. Data Preservation in the Event of Suspension or Termination.
15.7.1. In the Event of Suspension Other Than for Cause. In the event of a suspension by Us of Your access to any Service for any reason other than a for cause suspension under Section 15.4 (Termination for Cause), during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue.
15.7.2. In the Event of Termination Other Than for Cause. In the event of any termination by Us of any Service or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination under Section 15.4, (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due us, and your compliance with terms and conditions we may establish with respect to such data retrieval.
15.7.3. In the Event of Other Suspension or Termination. Except as provided in Sections 15.7.1 and 15.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
15.8. Post-Termination Assistance. Following the suspension or termination of your right to use the Services by us or by you for any reason other than a for cause termination (i.e., a termination under Section 15.2), you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services, such as data retrieval arrangements we may elect to make available. We may also endeavor to provide you unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to you, shall be conditioned upon your acceptance of and compliance with any fees and terms we specify for such assistance.
15.9. Surviving Provisions. Section 9 (Fees and Payment for Purchased Services), 10 (Proprietary Rights), 11 (Confidentiality), 12.3 (Disclaimer), 13 (Mutual Indemnification), 14 (Limitation of Liability), 15.5 (Refund or Payment upon Termination), 15.6 (Return of Your Data), 15.7 (Data Preservation in the Event of Suspension or Termination), 16 (Notices, Governing Law and Jurisdiction) and 17 (General Provisions) shall survive any termination or expiration of this Agreement.
16. NOTICES, GOVERNING LAW AND JURISDICTION
16.1. Notice. Disputes arising under this Agreement shall be sent by registered mail to the parties to the address shown on the most recent Order. All other notices may be sent by regular mail. Notice to DDC shall be to:
Durable Data Corporation
5150 Broadway, Suite 458
San Antonio, Texas 78209
16.2. 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 second 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). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
16.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of Texas without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of any state or federal court in Bexar County, Texas. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
16.4. 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.
17. GENERAL PROVISIONS
17.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
17.2. 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.
17.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
17.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
17.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
17.6. 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 9.3 (Invoicing and Payment)
17.7. 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. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.