This terms of use agreement (“Agreement”) governs Your use of Touch Ahead Software, LLC’s internet site (including the EquityTouch™ software) (the “Site”), other software, subscription services, or other services offered on or through the Site, including off-line or third party software, information, components, data, services, compilations, reports, dashboards, templates or programs. This Agreement applies to both paid and unpaid uses of the Site.
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, You must not accept this Agreement and may not use the Site. Additionally, if You are an individual or entity engaged in, preparing to engage in, assisting, or preparing to assist, or have an ownership or controlling interest in any business competitive to Our business, You may not use this Site in any manner without obtaining Our prior written authorization to do so. You may not access the Site for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, unless otherwise agreed to or authorized by Us prior to such usage.
By either clicking on the box which states You accept the terms of this Agreement, or by executing an order form that references the terms of this Agreement, You acknowledge that You have read all of the terms of this Agreement and accept and agree to abide by all such terms.
This Agreement and its terms may be modified at any time without notice to You. You are responsible for periodically reviewing this Agreement to make sure that You are aware of any modifications that may have been made to it. By continuing to use the Site after any modifications have been made to this Agreement, You agree to all of the terms and modifications and create a binding agreement to comply with all of the terms of, including modifications to, this Agreement.
1. DEFINITIONS
1.1 “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.
1.2 “API” means application program interface including any external and/or internal applications, and /or programs, which are provided by third parties, that interoperate with the Services and are identified as an application program interface.
1.3 “Customization” means any changes in the user dashboard which is or can be performed by the User (as defined below) which are made either by User or Us (at the request of the User).
1.4 “Intellectual Property Rights” means all right, title and interest evidenced by or embodied in (i) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law; (iii) any trademarks, trade names, trade dress and associated goodwill; and (iv) any other proprietary technology or materials in which similar rights exist.
1.5 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful code, files, scripts, agents or programs.
1.6 “Order Form” means the ordering documents (regardless of form or media) 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.
1.7 “Purchased Services” means Services (as defined below) that You or Your Affiliates purchase under an Order Form (as distinguished from those provided pursuant to a 30-day free trial).
1.8 “Services” means the subscription service offerings or other services offered by Us (as defined below) through the equitytouch.com, and touchahead.com URIs (as defined below), and/or other designated websites as described in the User Guide (as defined below), 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.
1.9 “Subscription” means the Services (as defined below) and Third Party Applications which You request to use through the Site, whether on a free trial basis or a paid basis.
1.10 “Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
1.11 “URI” means Uniform Resource Identifier and consists of a string of characters used to identify a name resource on the internet.
1.12 “User Guide” means the online user guide for the Services, accessible via any of the web applications utilizing the equitytouch.com or touchahead.com URIs, as updated from time to time.
1.13 “User” means an individual who is authorized by You to use the Services, for whom subscriptions to Services 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.
1.14 “We,” “Us” or “Our” means Touch Ahead Software, LLC.
1.15 “You” or “Your” means you, individually or on behalf of the individual or entity and any Affiliates of such individual or entity for whom you are accepting this Agreement.
1.16 “Your Content” means all data, information, and materials submitted, uploaded, posted, transmitted, e-mailed, or otherwise make available on or through the Site or the Services.
2. LICENSE GRANT; YOUR OBLIGATIONS; SUPPORT
2.1 Subject to the terms and conditions of this Agreement and any applicable Order Forms, We grant You a non-exclusive, non-transferable license to use the Site and the Services for the period during which you have paid for such Services (or in the case of Services subject to a 30-day free trial, for the period of a valid 30-day free trial). Such license will be solely for Your own internal business purposes. All rights not expressly granted to You are reserved by Us.
2.2 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.
2.3 You acknowledge that We are not responsible for obtaining or selling to You the hardware, internet access or any stand-alone third-party software that may be required to meet such standards systems requirements, or for providing maintenance or support thereof.
2.4 You will provide each User with personal log-on identification codes and be responsible for assigning such identification codes to, and establishing confidential passwords for, such Users. You shall keep a record of Your Users and We will be given access to such records upon request. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Site or Services for which You have paid Subscriptions.
2.5 You shall not (i) reproduce, license, sublicense, sell, resell, transfer, assign, display, distribute, rent, lease or otherwise commercially exploit or make available to any third party the Site or Services in any way; (ii) alter, modify or make derivative works based upon the Site or Services; (iii) create Internet "links" to the Site or Services, or "frame" or "mirror" any part of the Site or Services on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Site or Services in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Site or Services, or (c) copy any ideas, features, functions or graphics of the Site or Services, or use the Site or Services to attempt any of the foregoing.
2.6 You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws using the Site or Services; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights using the Site or Services; (iii) send or store material containing Malicious Code using the Site or Services; (iv) interfere with or disrupt the integrity or performance of the Site or Services or the data contained therein; or (v) attempt to gain unauthorized access to the Site or Services or any related systems or networks.
2.7 You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Content and of the means by which You acquired Your Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous 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, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You shall: (a) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to US immediately and use reasonable efforts to stop immediately any unauthorized access or use that is known or suspected by You or any User You have authorized to use the Services or Site; and (c) not impersonate any of Our employees or agents, or another Subscriber or User or provide false identity information to gain access to or use the Services or Site.
2.8 You shall only allow Our employees, agents or authorized designees to install, maintain, remove, modify, enhance, change, revise, correct, or fix the Services and the Site, except as otherwise provided in the User Guide.
2.9 We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (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 and which We shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Eastern time Friday to 6:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, those reasons set forth in Section 12.7 of this Agreement or Internet service provider failures or delays, and (iii) provide the Purchased Services in accordance with applicable laws and government regulations.
2.10 We will have no obligation to provide any Services or allow access to the Site, if You have: (a) deleted or modified any of the Services or the Site or any portion thereof (other than as permitted in the User Guide) without authorization from Us; or (b) failed to maintain the minimum technology standards required under this Agreement; or (c) failed to timely pay applicable fees; or (d) committed a material breach of this Agreement.
2.11 The Services, the Site and Third-Party Applications may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against any third party application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
3. INTELLECTUAL PROPERTY OWNERSHIP
3.1 We own and retain all right, title and interest in and to the Services and the Site and any updates, modifications or subsequent revisions thereof and any other intellectual property of Ours provided to You in connection with Your use of the Services or Site, or to which You have access by virtue of any Subscription, including but not limited to any Intellectual Property Rights in any patents, copyrights, trademarks, trade names, service marks, service names or logos now owned, controlled or licensed or that may be owned, controlled or licensed in the future, by Us and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Services and/or the Site. This Agreement, this license and/or Your use of Services and/or the Site do not provide You with any right to use any of Our Intellectual Property Rights of except as specifically set forth herein.
3.2 You own and retain all right, title and interest in and to Your Content. You represent and warrant that You have created, developed or licensed all of Your Content and Your Content has not been obtained unlawfully. You further represent and warrant that You have all legal right and authority to use Your Content in connection with the Services and the Site.
4. 30-DAY FREE TRIAL; LOSS OF YOUR CONTENT AND CUSTOMIZATIONS.
4.1 Before purchasing any Services, You may subscribe to a one-time free trial use of the Services for a period of 30 calendar days. The Services offered under this free trial subscription are subject to limitations, including number of Users, features, Third-Party Applications and the like. The User Guide provides information on the differences between the Services accessible during the trial period and those available with each Subscription level.
4.2 ANY CONTENT AND CUSTOMIZATIONS YOU USE OR MAKE IN THE SERVICES AND/OR THE SITE DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION FOR SERVICES AT THE SAME OR UPGRADED LEVEL AS THOSE COVERED BY THE TRIAL. YOU MAY EXPORT THE CONTENT YOU INPUT INTO THE SERVICES AND/OR THE SITE BEFORE THE EXPIRATION OF THE 30-DAY TRIAL PERIOD.
4.3 NOTWITHSTANDING SECTION 9 (WARRANTIES; DISCLAIMERS), DURING THE 30-DAY FREE TRIAL,THE SERVICES AND THE SITE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES.
5. THIRD-PARTY APPLICATIONS, SERVICES, SITES AND APIs
5.1 We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other 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 of third-party products or services is required to use the Services.
5.2 The Site may contain links to other Internet sites owned by third parties. Your use of each of those sites is subject to the conditions, if any, that each of those sites have posted. We have no control over sites that are not ours, and We are not responsible for any use of such sites or content on them. Our inclusion on the Site of any third-party content or a link to a third-party site is not an endorsement of that content or third-party site. Some content may come from government sources, is in the public domain, and is not copyrightable.
5.3 Service features that interoperate with Third Party Applications depend on the continuing availability of such Third Party Applications and APIs for use with the Services. If such Third Party Application and/or API is no longer provided by the third party, We will cease providing such Service features without any refund, credit, or other compensation to You for any payments You have already made. Additionally, We reserve the right to terminate, cancel or otherwise cease to provide or offer to provide any Third Party Applications and/or APIs at any time, without any refund, credit, or other compensation to You for any payments You have already made.
5.4 If You install or enable Third-Party Applications and/or APIs for use with Services, You acknowledge that We may allow providers of those Third-Party Applications and/or APIs to access Your Content as required for the interoperation of such Third-Party Applications and/or APIs with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Content resulting from any such access by third-party providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications and/or APIs for use with the Services.
6. TERM AND TERMINATION
6.1 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 or been cancelled. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.
6.2 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 then-current Subscription term.
6.3 Notwithstanding the foregoing, We may immediately terminate or suspend Your use of the Services and the Site or terminate Your account and this Agreement if you (i) fail to pay any applicable fees when due, or (ii) breach or otherwise fail to comply with this Agreement and fail to remedy this breach within thirty (30) days of being so notified. We may terminate any free account, Services, Third Party Applications and/or APIs at any time in Our sole discretion without liability to You. You will continue to be charged for Purchased Services during any period of suspension. Neither termination nor suspension will relieve You from Your obligation to timely pay fees that remain unpaid. Nothing in this Section 6.3 will limit either party from pursuing other available remedies.
6.4 Upon any termination by Us of this Agreement or the Purchased Services, You shall pay any unpaid fees covering the remainder of the Subscription terms for all Order Forms, even for those whose terms extend beyond 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. The provisions of this Section 6.4 will not apply to those situations defined by law.
6.5 Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Content in comma separated value (.csv) format along with attachments in its native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Content and shall thereafter, unless legally prohibited, delete all of Your Content in Our systems or otherwise in Our possession or under Our control. We shall have no obligation to make Your content available to You, to maintain or preserve Your content if any free Services, Third Party Application or APIs are terminated, suspended, cancelled or discontinued.
7. FEES AND PAYMENT FOR PURCHASED SERVICES
7.1 You agree to pay all fees set forth in all Order Forms. 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.
7.2 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 6. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form, for Your use of the Services and the Site. If the Order Form specifies that payment will be by a method other than a credit card, You will still be required to pay in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date and prior to Your Use of the Services and Site for the applicable month. You are responsible for making sure that We have complete and accurate billing and contact information.
7.3 If You do not pay charges by the due date, then at Our discretion, We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the Order Form. Additionally, past due charges will be subject to a late payment charge equal to one percent (1%) per month, or the highest rate permitted by law, whichever is less. 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 You’re the due date for all unpaid charges so that all such obligations become immediately due and payable, and suspend Your (including all Users licensed under the subject Subscription) use of the Services and Site until such amounts are paid in full.
7.4 Our charges 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 agree to pay all applicable taxes relating to Your purchase and/or use of the Services, the Site, APIs and/or Third Party Applications.
8. CONFIDENTIALITY; PRIVACY
8.1 Each party will regard any information provided to it by the other party as proprietary or confidential (“Proprietary Information”) and each party will protect the confidentiality of the other party’s Proprietary Information in the same manner as it protects its own valuable proprietary information. You expressly agree that the Services, the Site and the terms and conditions of this Agreement are the Proprietary Information of Touch Ahead Software, LLC. You agree not to remove or destroy any proprietary markings or restrictive legends placed upon or contained within the Services or the Site. Each party agrees, for itself and its agents and employees, to protect the confidentiality of any proprietary information of third parties in its possession and accepts responsibility for any breach of this Agreement by its agents or employees.
8.2 The Site is hosted in the United States. If You are visiting from the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that You may transfer Your Content to the United States and by providing Your Content to Us You represent, warrant, and covenant to Us that: (i) You have the authority and right to enter into this Agreement, to grant the rights granted by You under this Agreement, and to perform Your obligations under this Agreement; (ii) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by You at Your sole cost as may be necessary for either party to perform its obligations, (iii) You are authorized to distribute Your Content to Us, and (iv) You are not breaching any applicable data privacy rule or regulations, any of Your contractual obligations, or any of Your internal privacy policies.
9. WARRANTIES; DISCLAIMERS
9.1 You acknowledge and agree that Your access to the Internet and Our Services and Site are each provided by one or more third parties. As such, We do not and cannot control the flow of data to or from Our hosting environment and other portions of the Internet, nor do We control the availability or functionality of Your access to the Services and Site. Although We shall use commercially reasonable efforts, in accordance with the terms of Our agreement(s) with their party(ies), to maintain such availability and functionality in accordance herewith, We cannot and do not warrant that such events will not occur.
9.2 We warrant that during the Subscription term, the Site will conform to the User Guide. In the event the Site does not conform to the User Guide, if you promptly notify Us, We will endeavor to modify the Site so that it conforms. If after We endeavor to modify the Site, the Site still does not confirm to the User Guide, then in Our sole discretion, We will refund the fees paid to it by Subscriber (prorated to the later of the date You notified Us or Our confirmation that the Site is not conforming to the User Guide) and terminate the Agreement, provided that such nonconformance is not due to Your acts or omissions or due to some reason out of Our control, as set forth in Sections 6 and 12 of this Agreement. This Section 9.2 does not apply to Third-Party Applications or to APIs. In the event of nonconformity of Third-Party Applications or of APIs, we have no obligation to undertake any actions or refund to You any money already paid.
9.3 WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE SITE. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE SITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA OR INFORMATION WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES OR THE SITE WILL YOU’RE YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES OR THE SITE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY We.
9.4 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.
9.5 SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES/JURISDICTIONS, LICENSOR'S LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10. Limitations of Liability
10.1 IN NO EVENT SHALL OUR AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
10.2 IN NO EVENT SHALL WE BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERIVCES OR THE SITE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERIVCES OR THE SITE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THE SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 You agree and acknowledge that We have set our prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the limitations of liability and the disclaimers of warranties and damages set forth herein form the basis of the bargain between the parties. The parties agree that the limitations and exclusion of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
10.4 No proceeding, regardless of the form, arising out of the subject matter of this Agreement, will be brought by You more than one year after You knew or should have known about the claim. You agree to this shortened period during which You may assert any claim and understand that this period maybe shorter than that to which You would be entitled by law.
11. Indemnification
11.1 In the event that any law suit or proceeding is commenced against You based on a claim that the Service or Site infringes any registered or validly issued United States patent, United States registered copyright, or constitute a misappropriation of trade secret, We will: (i) defend such suit or proceeding at Our expense, as long as We are notified promptly by You in writing and are given complete authority and information required to defend or settle such suit or proceeding; and (ii) pay all damages and costs finally awarded against Us, provided that We will not be responsible for any cost, expense, or compromise made by You without Our prior written consent.
11.2 Should the Services or Site or any part thereof become, or in Our sole opinion be likely to become, the subject of a claim for infringement, We may, at Our own expense and option, either (i) procure for You the right to continue using such Services or Site or (ii) replace or modify the Services or Site so that it becomes non-infringing (but providing substantially equivalent functionality). If neither of these options is reasonable or practical, We may terminate this Agreement, whereupon, We shall refund to You a portion of the payments received by Us from You under this Agreement for interruption, suspension or termination of the Services or Site prior to the time of any final adjudication of infringement, and return You Your Content in accordance with Section 6.5.
11.3 Under no circumstances will We be obligated to defend or be liable for costs and damages hereunder if the alleged infringement arises out of: (i) use or combination of the Services and/or Site with software or hardware not provided by Us where the infringement would not have arisen without such combination or use; (ii) use of other than the latest unmodified release of the Services and/or Site made available to You by Us if such infringement would have been avoided by the use of such later release; (iv) modification of the Services and/or Site after delivery and/or installation by a party other than Us; (v) continued use of the Services and/or Site after receiving notice or having reason to believe, that such product infringes a patent or copyright of a third party; or (v) a claim based upon any portion of the Services and/or Site originally obtained by Us from third parties. We shall have no liability for any claim based upon Your or Your Users’, representatives’ or agents’ activities after We have notified You that We believe such activities may result in infringement.
11.4 You shall indemnify and hold Us harmless from all claims, losses, and damages which may arise from any (i) use or combination of the Services and/or Site with software or hardware not provided by We; (ii) use of other than the latest unmodified release of the Services and/or Site made available to You by Us; (iii) modification, enhancement or other change by a party other than the Services and/or Site after delivery and/or installation by Us; (iv) act or omission of You or Your Users, representatives’ or agents to Your clients in the course of Your conducting Your normal business; or (v) act or omission by You or Your Users, representatives or agents where You or Your Users, representatives or agents were not using the Services and/or Site correctly or for the purposes for which We intended such the Services and/or Site to be used, including without limitation, claims based on representations, warranties, errors, omissions, miscalculations, or misrepresentations made by Subscriber or its agents, negligence, malpractice or any other act or failure to act on the part of the Subscriber or its agents.
12. GENERAL PROVISIONS
12.1 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.
12.2 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.3 There are no third-party beneficiaries to this Agreement.
12.4 Any failure or delay by Us in exercising or enforcing any right under this Agreement shall not constitute a waiver by Us of that right. No waiver 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.
12.5 If any provision of this Agreement is held invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in force and effect.
12.6 All provisions regarding protection of Proprietary Information, Our Intellectual Property Rights, payment, indemnification, warranty, liability and limitations thereof, will survive termination of this Agreement.
12.7 Neither party hereto will be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation acts of God, war, terrorism, fire, flood or shortage or failure of suppliers; provided, however, that if there is such an event extending for more than 60 days that affects the ability of one or both parties to perform its obligations under this Agreement, the party not claiming the existence of such an event will have the right to give notice of the termination of this Agreement without penalty.
12.8 You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any money due Us under this Agreement.
12.9 This Agreement may not be assigned by You without the prior written approval of Us but may be assigned by Us without Your consent. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Ours directly or indirectly owning You shall entitle Us to terminate this Agreement for cause immediately. Additionally, any transaction that results or would result in Your directly or indirectly owning a direct competitor of Ours shall entitle Us to terminate this Agreement immediately.
12.10 This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is t Page Content o be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.11 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 (except that email shall not be sufficient for notices of termination or for indemnification purposes). 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. Notice to Us shall be addressed to Touch Ahead Software LLC, 2 Liberty Square, 7th Floor, Boston, MA 02109.
12.12 This Agreement shall be governed by the laws of the Commonwealth of Massachusetts and applicable United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the subject matter thereof shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts.
12.13 Any dispute arising out of or relating to this Agreement, the Services or the Site will be finally settled by arbitration, except that We may bring an action in a court of competent jurisdiction with respect to any dispute affecting Our intellectual property rights whether statutory or contractual. The arbitration will be conducted in accordance with the commercial arbitration rules (the "Rules") of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Boston, Massachusetts, United States, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. All arbitration proceedings will be conducted in English by a single arbitrator selected under the Rules who must be a lawyer and fluent in English. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. We may seek any interim or preliminary relief from a court of competent jurisdiction in Boston, Massachusetts, necessary to protect Our (or Our affiliates’, agents’, suppliers’, and subcontractors’) rights or property, pending the completion of arbitration.
