LICENSING TERMS AND CONDITIONS
1. DEFINITIONS.
1.1. Agreement means the integrated agreement that is formed by the inclusion of these Licensing Terms with the main body of the Agreement signed by Subscriber.
1.2. Authorized User means a person employed by Subscriber who is expressly authorized by Subscriber to use the Service and has received a username and password from SitePod to access the Service.
1.3. Business Day means any day that is not a Saturday, Sunday or a legal holiday in the State of New York.
1.4. Confidential Information means and includes the terms of this Agreement, the Software (including the algorithms it uses and its underlying structure), the SitePod Content and portions of the SitePod Website which are made available only to Authorized Users, the Subscriber Data, and all proprietary and confidential information of a Party to this Agreement that is provided or disclosed to the other Party, except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to the Receiving Party or its employees, agents, or representatives prior to such disclosure; (c) subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third-Party without obligations of confidentiality; or (d) de-identified data and aggregated statistical data about usage of the SitePod Website. Confidential Information includes, without limitation, the following types of information: all financial and operational information, and other matters relating to the operation of a Party’s business; any information about a Party’s information or communications infrastructure; information relating to actual or potential customers and customer lists, any information relating to the corporate or operational structure of a Party and any other information which a Party wishes to keep confidential under the terms of this Agreement which is marked in writing as being confidential prior to disclosing such information to the other Party.
1.5. Disclosing Party means the Party to this Agreement which discloses its own confidential information to the other Party to this Agreement.
1.6. Documentation means that documentation that is generally provided to Subscriber by SitePod which may include end user manuals, operation instructions, and on-line help files regarding use of the Service.
1.7. Intellectual Property Rights means all United States intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications and all other proprietary rights, whether registered or unregistered.
1.8. Late Fee means the fee specified in Section 6.5.
1.9. Malicious Code means software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
1.10. Purpose means entering information, through the Service, which is needed for Subscriber to operate their business, in the Service’s databases and retrieving information from the Service.
1.11. Receiving Party means the Party to this Agreement who receives, from the other Party to this Agreement, a disclosure of the other Party’s Confidential Information.
1.12. SitePod Content means text, graphics, audio, video, screen displays and other information and data available to Subscriber in the course of using the Service or the SitePod Website. SitePod Content does not include Subscriber Data.
1.13. SitePod Website means the root website at http://Sitepod.com, and any subdomains thereof, from which the Service may be accessed and used.
1.14. Service means the online service offered by SitePod which makes available the Software, the SitePod Content and the Documentation to Subscriber, all through access to the SitePod Website.
1.15. Software means the software and its related databases which are made available on the SitePod Website, which software generally relates to the functions of organizing the operations of a business servicing the construction industry from information entered by the Subscriber.
1.16. Subscriber Data means data, information, documents or other material provided or submitted by Subscriber to the Service in the course of utilizing the Service.
1.17. Subscriber’s Representative means the person designated by Subscriber as the point of contact between SitePod and Subscriber.
Support Services means the services provided by SitePod in making available the SitePod Website and arranging for the provision of support and maintenance for the SitePod Website and the Service.
2. LICENSE
2.1. Grant of License. Subject to Subscriber’s compliance with this Agreement, SitePod hereby grants to Subscriber and Subscriber hereby accepts, a nontransferable, nonsublicensable, nonexclusive right to access and to use the Service, from a location within the United States, and solely in connection with internal uses directed toward fulfilling the Purpose. This right includes the right, during the term of this Agreement, to make a reasonable number of copies of the Documentation (not to exceed the number of Authorized Users) solely for Subscriber’s use in connection with the access and use of the Service.
2.2. Authorized Users. The license granted by this Agreement permits use of the Service by an unlimited number of Authorized Users for the internal uses directed toward fulfilling the Purpose and only during the term of an Authorized User’s employment by Subscriber.
2.3. License Restrictions. Subscriber shall not and shall not permit or assist its Authorized Users or any third party to:
2.3.1. reverse engineer, reverse assemble, decompile or otherwise attempt to derive the source code (or underlying structure or algorithms) of any Software used to provide the Service;
2.3.2. alter, adapt, modify or otherwise create any derivative works of the Software, the SitePod Content or the Documentation;
2.3.3. copy the Software or the Documentation without the prior written consent of SitePod;
2.3.4. remove, modify, or obscure any copyright and other proprietary rights notices;
2.3.5. license, sublicense, assign, sell, resell, transfer, lease, loan, distribute or otherwise grant any rights in the Service in any form to any other person or otherwise commercially exploit or make use of the SitePod Content, the Documentation or other components of the Service in any way or use the Service in a time-sharing capacity, service bureau capacity or similar capacity;
2.3.6. use knowledge about the Service and the functionality of the Software to build a competitive product or service or make or have made a product using similar ideas, features, functions or graphics of the Service or SitePod Content;
2.3.7. copy any processes, concepts, features, functions or graphics from or embedded with the Service or SitePod Content;
2.3.8. create Internet links to the Service or frame or mirror any SitePod Content on any other service or wireless or Internet-based device;
2.3.9. impersonate another entity that is a user of the Service or provide false identity information to gain access to or use the Service;
2.3.10. attempt to gain unauthorized access to the Service or its related systems or networks;
2.3.11. send or store material containing Malicious Code through the Service; or
2.3.12. interfere with or disrupt the integrity or performance of the Service or the data contained in the Service;
2.3.13. send spam or otherwise duplicative or unsolicited messages through the Service in violation of applicable laws; or
2.3.14. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material harmful to children or violative of third-party privacy rights in connection with the Service.
2.4. Reservation of Rights. SitePod reserves all rights not expressly granted to Subscriber in this Agreement. Nothing in this Agreement shall be construed as granting to or conferring on Subscriber any right, title, or interest in SitePod’s Intellectual Property Rights whether the intellectual property giving rise to those rights is now owned or licensed or subsequently developed, licensed or owned by SitePod. SitePod (or its licensor) retains all right, title, and interest in and to the Service and Documentation, including without limitation, all software that is part of the Service, the SitePod Content displayed on the Service, all logos and trademarks reproduced through the Service, all work product created conceived, developed or first reduced to practice by SitePod, either solely or in collaboration with others, prior to SitePod delivery of the Services including, but not limited to designs, processes, software, and written materials that relate to the Intellectual Property or to the Services provided hereunder.
2.5. Subscriber’s Acknowledgement of Ownership Rights of SitePod. Subscriber acknowledges that the license granted under Section 2.1 does not constitute a transfer or sale of SitePod’s (and, where applicable, its licensor’s) ownership rights in and to the Service or any of its components (the Software, the SitePod Content and the Documentation). All rights, title and interest, including all Intellectual Property Rights in and to the Service and its components (the Software, SitePod Content and the Documentation) shall be and will remain the exclusive property of SitePod or the third party from whom SitePod has licensed such content, software or technology. Subscriber further acknowledges that the Service and the information therein is proprietary to SitePod and its licensors and comprises: (a) original works of authorship, including compiled information containing SitePod’s or its licensors’ selection, arrangement and coordination, and expression of such information; (b) confidential and trade secret information; and (c) information that has been created, developed, and maintained by SitePod or its licensors at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm SitePod or its licensors.
2.6. Protecting the Service and Intellectual Property Rights of SitePod.
2.6.1. Subscriber agrees to secure and protect the Service by requiring its Authorized Users who are permitted to access and use the Service to comply with the terms and conditions set forth in Section 2.3 with respect to their use, access and protection of the Service.
2.6.2. SitePod has the right to suspend Subscriber’s access and use rights or the access or the access and use rights of an Authorized User immediately and without notice if SitePod has a reasonable belief that Subscriber through one or more of its Authorized Users has, either intentionally or inadvertently, introduced Malicious Code into the Service, has launched a denial of service attack, or has taken some other action that threatens the security of the Service.
3. SUBSCRIBER RESPONSIBILITIES
3.1. Scope. Subscriber is solely responsible for all activities that occur under Subscriber’s accounts for its Authorized Users. Subscriber shall abide by and cause its Authorized Users to abide by all applicable local, state, and national laws, and regulations in connection with Subscriber’s use of the Service and Documentation, including, without limitation, those related to Intellectual Property Rights, , data privacy, and the transmission of technical or personal data. It is the responsibility of Subscriber to ensure that the uploading or entry into the Service of any data or information complies with all applicable laws and regulations.
3.2. Usernames and Passwords. Subscriber is responsible for authorizing SitePod or the Service to create a master account for Subscriber which can be accessed only by using the username assigned by the Service or SitePod to the Authorized User and a unique password. Subscriber can then authorize their employees, as needed, to access the Service. Subscriber is also responsible for terminating an Authorized User’s access to the Service when that Authorized User terminates its employment relationship with Subscriber. Subscriber shall ensure that its Authorized Users maintain the security and confidentiality of such usernames and passwords and do not share usernames and passwords.
3.3. Reporting to SitePod. Upon creating an account for an Authorized User or directing SitePod or the Service to create an account, Subscriber shall notify SitePod or the Service of the name of the person for whom the account was created along with the Authorized User’s email address, work phone number and work address. Subscriber agrees to immediately notify SitePod of any unauthorized use of any Authorized User’s username or password or any other known or suspected breach of security. Subscriber agrees to report to SitePod immediately and use reasonable efforts to stop immediately any copying or distribution of SitePod Content that is known or suspected by Subscriber or Subscriber’s Authorized Users to have occurred or to be occurring.
3.4. Subscriber’s Representative. Subscriber shall identify one employee to act as the Subscriber’s Representative for the purposes of authorizing the creation of user accounts and acting as the point of contact between SitePod and Subscriber for sending and receiving notifications and reports.
3.5. Equipment and Facilities. Subscriber shall be responsible, at its own expense, for providing the telecommunications services, telecommunications equipment, computer hardware, and web browser software necessary for connecting to the SitePod Website. The browser software used by Subscriber must be a web browser that is supported by the Service.
4. SUBSCRIBER DATA
4.1. Ownership of Subscriber Data. All Subscriber Data submitted by Subscriber to the Service is, and will remain, the sole property of Subscriber.
4.2. Subscriber Data Quality. Subscriber will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any Intellectual Property Right to use all of the Subscriber Data. SitePod will not use the Subscriber Data for any purpose other than to provide the Service to Subscriber and to carry out any related services, such as training.
4.3. Grant of Limited License to Subscriber Data. Subject to the terms and conditions of this Agreement, Subscriber grants to SitePod a non-exclusive license to use, copy, store, transmit and display Subscriber Data to the extent reasonably necessary to provide and maintain the Service including backing-up the information stored in the Service’s databases and carry out any other related services, such as training.
4.4. Aggregated Statistical Data. SitePod may aggregate anonymous statistical data regarding use and functioning of the Service by its Subscribers. Such aggregated statistical data will be the sole property of SitePod.
5. SITEPOD’S RESPONSIBILITIES
5.1. Hosting Services.
5.1.1. SitePod shall arrange for hosting and related services (“Hosting Services”) for the Service from one or more third parties. The SitePod website may be hosted and the Service’s databases may be maintained on servers owned by a third party and located in a data center.
5.1.2. The Hosting Services shall meet the service levels set forth in the Service Level Agreement described in sections 17. The Service Level Agreement reflects the commitments regarding system availability, exclusions and backups that its suppliers have made to SitePod and SitePod is passing through to its Subscriber. In the event that SitePod’s suppliers change their service level commitments to SitePod, SitePod reserves the right to modify the Service Level Agreement from time to time to reflect such changes by notifying Subscriber of such changes and the date on which such changes will become effective.
5.1.3. SitePod will undertake commercially reasonable measures to ensure that the operation and the functions of the Service will be available as required by the Service Level Agreement set forth in sections 17. Notwithstanding the foregoing, SitePod will have no obligation under this Section 5.1, to the extent of any lack of availability is due to, in whole or in part, any use of the Service by Subscriber other than in accordance with the terms and conditions set forth herein nor shall SitePod have any liability if the lack of availability of the Service results from malfunctions or unavailability of hardware, software, telecommunications equipment or other equipment owned by Subscriber or services provided pursuant to a contract between Subscriber and a third party (e.g., an Internet service provider, a DSL provider, electricity provider, etc.) or catastrophic circumstances reasonably beyond the control of SitePod or its suppliers.
5.2. Support and Maintenance. SitePod will provide support and maintenance services for the Service. SitePod will provide Subscriber with necessary and reasonable support services to facilitate use of the Service. For purposes of this Agreement “Support Services” includes responding to questions (e-mail and telephone) from Subscriber’s Authorized Users relating to technical problems in using the Service; and (2) complying with the SLA. SitePod reserves the right, but has no obligation, to implement new versions and upgrades of the Service including, but not limited to, changes that effect modifications to the design, operational methods, technical specifications, systems, and other functions, etc. of the Service at any time without prior notice.
5.3. Granting Access to Authorized Users. SitePod shall be responsible for setting up the accounts for Subscriber’s Authorized Users and issuing usernames and passwords for each Authorized User.
6. FEES AND BILLING
6.1. Comprehensive Service Fee. Subscriber shall pay to SitePod a Comprehensive Service Fee and Onboarding Fee in the amounts set forth in the Contract. This Comprehensive Service Fee is an ongoing monthly subscription fee. The Onboarding Fee is a one-time onboarding fee.
6.2. Payment Due Date. The Comprehensive Service Fee shall be due monthly, starting on the Effective Date. The Onboarding Fee shall either be paid in full on the Effective Date or shall be due monthly on the date of renewal.
6.3. Billing. Subscriber agrees to provide SitePod with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, and the name, email address and telephone number of a billing contact. Subscriber agrees to update this information within thirty (30) days of any change to the information. SitePod shall bill Subscriber monthly for the Comprehensive Service Fee and Onboarding Fee.
6.4. Payment Method. All payments will be processed, on a monthly basis, through Stripe, an encrypted and secure gateway. SitePod does not store or have access to any actual credit card information. By agreeing to this Agreement, you agree that we may use Stripe to bill your credit card every month on the date of renewal.
6.5. Payment Terms. All fees, expenses, and costs shall be paid in United States dollars within fifteen (15) days of the monthly date of renewal.
6.6. Automated Payments. If an automated payment fails and funds for services rendered are not received on such date that payment is due, the outstanding balance will be subject to the terms of paragraph 6.8 until such amount is paid in full. If we are required to collect any amounts past due through use of an attorney, Subscriber shall be responsible for payment of any associated collections costs.
6.7. Late Fees. Any undisputed amounts not paid within ten (10) days of the due date shall be subject to a Late Fee equal to the lesser of 1.0% percent per month on the outstanding balance or the maximum interest rate on the outstanding balance allowed by applicable law.
6.8. Disputed Invoices. If Subscriber believes an invoice is incorrect, Subscriber must contact SitePod within thirty (30) days of the invoice date. If Subscriber does not so inform SitePod within such time period, SitePod has no obligation to issue an adjustment or credit to Subscriber.
6.9. Taxes. All fees are exclusive of any and all taxes, duties or levies assessed by applicable governmental authorities. All such taxes, duties, and levies (exclusive of any taxes based on SitePod’s income) shall be assumed by and paid for by Subscriber.
6.10. Fee Increases. SitePod shall be permitted to increase the Comprehensive Service Fee no more than once every six (6) months, which fee increase shall not become effective until at least thirty (30) days after SitePod notifies Subscriber of the Comprehensive Service Fee increase.
7. TERMINATION
7.1. Term. The term of this Agreement shall commence upon the Effective Date and continue in full force and effect unless terminated in accordance with this Agreement.
7.2. Insolvency of a Party. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party in the event that a Party (a) becomes insolvent or unable to pay its debts when due; (b) files a petition in bankruptcy, reorganization or similar proceeding, or if, filed against the Party, such petition is not removed within ninety (90) days after such filing; or (c) has a receiver appointed or makes an assignment for the benefit of the Party’s creditors.
7.3. Termination for Convenience. Either Party may terminate the Agreement by providing thirty (30) days’ written notice of termination to the other Party.
7.4. Termination for Cause by SitePod. SitePod shall have the right to terminate this Agreement and any all rights or licenses granted under the following conditions:
7.4.1. If Subscriber commits a material breach of any of its obligations concerning the scope of use or the protection of the Service, the Documentation and/or the Intellectual Property Rights of SitePod or its licensors or the Confidential Information, in which case Subscriber is not entitled to a period in which to cure such breach and the termination shall be effective immediately upon delivery of notice to Subscriber;
7.4.2. If Subscriber fails to pay all undisputed portions of the Comprehensive Service Fees, Onboarding Fee, and Late Fees within ninety (90) days of the due date for such Fees or materially breaches any of its obligations under any provision of this Agreement, which breach is not cured by Subscriber within thirty (30) days after receipt of written notice of breach from SitePod;
7.4.2.1. Suspension. Sixty (60) days following the due date for all fees, SitePod will suspend Subscriber’s account. Subscriber will have thirty (30) days to submit payment for all undisputed fees, plus any applicable Late Fees. If Subscriber does not remit payment during this thirty (30) day period, SitePod will terminate the account in accords with the provisions in this section.
7.4.3. If the Service infringes the Intellectual Property Rights of a third party pursuant to the terms of Section 12.3; or
7.4.4. Pursuant to Section 16.3 in light of a change in law.
7.5. Termination by Subscriber. Subscriber shall have the right to terminate this Agreement under the following conditions:
7.5.1. If SitePod materially breaches any of its obligations under this Agreement, which breach is not remedied within thirty (30) days after receipt of written notice from Subscriber;
7.5.2. If SitePod raises Comprehensive Service Fees and Subscriber provides notice of termination prior to the date on which the increase in Comprehensive Service Fees occurs; or
7.5.3. Pursuant to Section 16.3 in light of a change in law.
7.6. Effect of Termination. Upon termination or expiration of the Agreement, Subscriber’s access to and use of the Service shall terminate. Subscriber shall be required to return to SitePod all copies of the Documentation and all copies of SitePod’s Confidential Information in possession of Subscriber or to send SitePod a certificate attesting that Subscriber either did not make any copies of the Documentation, did not make any copies of SitePod’s Confidential Information or that Subscriber securely destroyed all copies of the Documentation and SitePod’s Confidential Information that Subscriber made. SitePod shall reasonably cooperate with Subscriber to return Subscriber Data stored within the Service’s databases within thirty (30) days of termination of the
Agreement. Any provision will survive termination if by its nature and context it is intended to survive, including Sections 2.5 (Subscriber’s Acknowledgement of Ownership Rights of SitePod), 4.1 (Ownership of Subscriber Data), 8 (Warranties), 9 (Disclaimers), 10 (Exclusive Remedies), 11 (limitation on Liability), 12 (Indemnification), 13 (Confidential Information), 14 (Audit), 15 (Dispute Resolution), and 16.8 (Notice).
8. WARRANTIES
8.1. Software. SitePod warrants that the Software shall perform in all material respects substantially in accordance with the functionality described in the Documentation, provided that Subscriber has complied with any restriction set forth in Section 2.3 that is applicable to the Software. SitePod will, at its own expense and as its sole obligation and as Subscriber’s exclusive remedy for any breach of this warranty, either replace the Software or correct any reproducible error in the Software reported to SitePod by Subscriber in writing. If SitePod determines that it is unable to correct the error or replace the Software, SitePod will issue a refund in the amount of the Comprehensive Service Fees paid by Subscriber in the three (3) months immediately preceding the date that Subscriber reported an error in the functioning of the Software to SitePod.
8.2. Service Level Warranty. SitePod warrants that during the Term of this Agreement that the Service will meet the applicable service level stated in section 17.1 unless such failure is subject to an exclusion set forth in Section 17.2. If SitePod does not achieve such service level, SitePod will provide Subscriber, upon a written request, with a credit of 10 percent (10%) of the Comprehensive Service Fee for the month in which SitePod failed to meet the required service level, which credit is to be applied against future Comprehensive Service Fees owed by Subscriber. To claim a remedy under this Section, Subscriber is required to notify SitePod within one (1) day of the occurrence of the failure to provide the applicable service level. THE REMEDY SET FORTH IN THIS SECTION 8.2 SHALL BE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 8.2.
8.3. Third Party Content. The Service may include gateways, links or other functionality that allows Subscriber to access third-party services or third-party content and materials. SitePod, its licensors and its suppliers have no responsibility for, and none of them makes any warranty with respect to, any aspect of such third-party services, content and materials.
9. DISCLAIMERS
9.1. GENERAL. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SITEPOD, ITS LICENSORS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE AND ITS COMPONENTS (THE SOFTWARE, SITEPOD CONTENT, AND THE DOCUMENTATION), AND/OR ANY SERVICES FURNISHED TO SUBSCRIBER UNDER THIS AGREEMENT WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. SITEPOD, ITS LICENSORS, AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS.
9.2. INTERNET DELAYS. THE OPERATION OF THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SITEPOD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER HARM OR DAMAGE RESULTING FROM SUCH PROBLEMS.
10. EXCLUSIVE REMEDIES
SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY AGAINST SITEPOD, ITS LICENSORS OR SUPPLIERS FOR BREACH OF ANY OF THE WARRANTIES SET FORTH IN SECTION 8.1 SHALL BE FOR SITEPOD, AT ITS SOLE OPTION AND DISCRETION, TO REPLACE THE SOFTWARE OR TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY REPRODUCIBLE ERROR IN THE SOFTWARE OR THE SERVICE AS TO WHICH SUBSCRIBER HAS GIVEN SITEPOD WRITTEN NOTICE. NEITHER SITEPOD, ITS LICENSORS NOR ITS SUPPLIERS SHALL HAVE ANY OBLIGATION TO CORRECT AN ERROR THAT THEY CANNOT REPRODUCE. IN THE EVENT SITEPOD, IN ITS SOLE DISCRETION, DETERMINES THAT IT WOULD NOT BE COMMERCIALLY REASONABLE TO CORRECT OR REPLACE ANY DEFICIENT SOFTWARE OR OTHER COMPONENT OF THE SERVICE, SUBSCRIBER SHALL BE ENTITLED TO A FULL REFUND OF THE COMPREHENSIVE SERVICE FEES THAT SUBSCRIBER HAS PAID TO SITEPOD FOR THE SERVICE IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUBSCRIBER REPORTED THE REPRODUCIBLE ERROR TO SITEPOD.
11. LIMITATION ON LIABILITY
11.1. GENERAL. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SITEPOD AND ITS REPRESENTATIVES, INCLUDING ITS EMPLOYEES, AGENTS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, LICENSORS AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE SERVICE EXCEED THE AMOUNT OF COMPREHENSIVE SERVICE FEES PAID BY SUBSCRIBER TO SITEPOD DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. IN NO EVENT SHALL SITEPOD OR ITS REPRESENTATIVES BE LIABLE FOR ANY DAMAGES CAUSED BY ANY VIRUSES, TROJAN HORSES, WORMS, RANSOMWARE OR OTHER TYPES OF MALWARE OR OTHER SIMILAR CODE OR ANY DENIAL-OF-SERVICE ATTACKS OR ANY UNAUTHORIZED ACCESS TO SUBSCRIBER’S SYSTEM BY UNRELATED THIRD PARTIES. IN NO EVENT SHALL SITEPOD OR ITS REPRESENTATIVES BE LIABLE FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR SUBSCRIBER’S USE OF THE SERVICE, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SITEPOD OR ANY SITEPOD REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.2. Data. Subscriber agrees to perform periodic backups of the data in the Service’s databases so that the likelihood of data loss is minimized. SitePod may provide Subscriber with guidelines for proper data backup; however, (i) Subscriber shall be solely responsible for performing backups and (ii) without limiting the generality of section 8.1, SitePod shall in no event be liable for any lost data, re-run time, inaccurate input, work delays, or lost profits resulting from Subscriber’s use of the Service or Subscriber’s failure to backup data.
12. INDEMNIFICATION
12.1. Indemnification by SitePod. Subject to the remainder of this Section 12, SitePod shall indemnify, defend, and hold harmless Subscriber from and against any and all damages and costs finally awarded for infringement of any valid United States Intellectual Property Right of a third party in any suit based upon the use by Subscriber of the Service or its components (the Software, the SitePod Content, and the Documentation) in compliance with the rights granted by SitePod in this Agreement. SitePod shall not be obligated to indemnify Subscriber unless: (a) Subscriber notifies SitePod promptly in writing of any alleged infringement of which Subscriber becomes aware; (b) Subscriber gives SitePod sole authority to control fully the defense and settlement of any infringement claim; and (c) Subscriber furnishes all reasonable assistance and provides all appropriate documentation in its possession requested by SitePod.
12.2. Exclusions. Notwithstanding the foregoing, SitePod shall have no obligation to indemnify Subscriber pursuant to this Section 12 with respect to any infringement or alleged infringement resulting from (a) any modification to the Service made by Subscriber or at Subscriber’s direction; (b) any unauthorized use of the Service by Subscriber or any third party; (c) use of the Service by Subscriber in combination with other software or equipment not provided by SitePod where the Service, but for said combination would not be infringing; or (d) Subscriber’s failure to use the Service in accordance with the terms and conditions of this Agreement or Subscriber’s use of the Service for a purpose or in a manner for which the Service was not designed.
12.3. SitePod’s Options. In the event of an infringement claim against Subscriber with respect to the Software and/or Documentation, or in the event SitePod believes such a claim is likely, SitePod shall have the option, at its expense, to (a) modify or replace the Software, the SitePod Content, the Documentation or any other component of the Service so that they are non-infringing; or (b) obtain for Subscriber a right to continue accessing and using the Software, SitePod Content, Documentation or other component of the Service. If neither of the foregoing alternatives are commercially practicable, then SitePod shall have the right to cancel Subscriber’s right to access and use the Service and terminate this Agreement without any further liability to SitePod. Upon termination, SitePod shall require Subscriber to return any copies of the Documentation in Subscriber’s possession. Upon return of the Documentation or, in the alternative, a certification by Subscriber that Subscriber has destroyed all copies of the Documentation that it had made, SitePod shall refund to Subscriber all Fees for use of the Service paid during the three (3) month period immediately preceding the date on which SitePod canceled Subscriber’s access to the Service. Nothing in this Subsection 12.3 shall limit the obligation of SitePod under Subsection 12.1 (subject to the exclusions set forth in Subsection 12.2) to defend and indemnify Subscriber.
12.4. Sole Remedy. THE FOREGOING PROVISIONS IN THIS SECTION 12 STATE THE SOLE AND EXCLUSIVE LIABILITY OF SITEPOD FOR ANY THIRD-PARTY CLAIM OF INFRINGEMENT AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD THERETO.
12.5. Indemnification by Subscriber.
12.5.1. Obligation. Subscriber shall indemnify, defend, and hold harmless SitePod, and its licensors, suppliers, owners, officers, directors, managers, employees and agents, (collectively, “Licensor’s Indemnitees”) from and against any and all losses, damages, costs and expenses including, but not limited to, reasonable attorneys’ fees, and liabilities resulting from or arising out of or in connection with a claim, suit, action or proceeding by a third party alleging that: (a) Subscriber failed to comply with all applicable laws, rules and regulations; (b) Subscriber Data or other data or information supplied by Subscriber infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; (c) Subscriber’s breach of the rights granted in Section 2 harmed the third party; or (d) Subscriber introduced malicious code that interfered with the operation of the Service or otherwise harmed the Service or caused a data breach which violated a law applicable to SitePod’s obligations to protect the privacy and/or security of information stored in the Service’s databases.
12.5.2. SitePod shall provide Subscriber with: (a) prompt written notice of any such claim of which SitePod becomes aware; (b) all reasonable assistance and documentation in SitePod’s possession requested by Subscriber to defend such
claim; and (c) control over the defense and settlement of such claim, provided that Subscriber shall not agree to any settlement or other disposition that imposes any obligation on SitePod.
13. CONFIDENTIAL INFORMATION
13.1. Safeguarding Confidential Information. The Receiving Party agrees to exercise the same degree of care and protection with respect to the Confidential Information of the Disclosing Party that it exercises with respect to its own Confidential Information, which in all cases shall be reasonable measures designed to protect the confidentiality and security of the Confidential Information; further Receiving Party agrees not to directly or indirectly disclose, copy, distribute, republish or allow any third party to have access to any Confidential Information of the Disclosing Party except as otherwise provided in Section 13.2 below.
13.2. Permitted Disclosures. SitePod may disclose Subscriber’s Confidential Information to only to those of its employees, and authorized agents (including attorneys and certified public accountants) who have a need to know. Subscriber may disclose SitePod’s Confidential Information only to those of its employees, business associates and authorized agents (including attorneys and certified public accountants) who have a need to know. Either Party may disclose the other Party’s Confidential Information if required by law provided that such disclosure is made in accordance with the terms of Section 13.3.
13.3. Notification Obligation. If the Receiving Party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or similar process) to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall immediately notify the Disclosing Party of the receipt of a request or demand to disclose the Disclosing Party’s Confidential Information. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information without providing the Disclosing Party at least seventy-two (72) hours prior written notice of any request or demand so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If in the absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its employees are, in the written opinion of the Receiving Party’s legal counsel (a copy of which opinion shall be delivered to the other Party) legally compelled to disclose Confidential Information in an administrative law proceeding, regulatory proceeding for a governmental agency, arbitration proceeding, or court proceeding or otherwise be subjected to contempt, the Receiving Party or its employees may, without liability hereunder, disclose to the person(s), agency, arbitrator or judge conducing the proceeding and a Party to the proceeding only that portion of the Confidential Information that counsel has advised is legally required to be disclosed. Notwithstanding the foregoing, the Receiving Party shall use its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with the Disclosing Party to obtain an
appropriate protective order or other reliable assurances that confidential treatment will be accorded to the Confidential Information by the person(s) conducting the proceeding and other parties to the proceeding to whom the Confidential Information is disclosed.
13.4. Return of Confidential Information. Upon the request of Subscriber, SitePod shall promptly return Subscriber’s Confidential Information being held in paper form and shall delete any Confidential Information being stored by and accessible through the Service from the Service’s database. However, SitePod shall not be required to remove any Confidential Information from its back-up archives. Upon the request of SitePod, Subscriber shall promptly return SitePod’s Confidential Information in its possession being held in paper form and shall delete any electronically stored Confidential Information from the computer or media (e.g., USB drive, thumb drive, CD, memory stick, portable hard drive) in which it is stored.
14. AUDIT
During the term of this Agreement and for a period of one (1) year after termination, upon reasonable notice, SitePod may perform a reasonable audit to confirm Subscriber’s compliance with the terms and conditions of this Agreement, including, but not limited to, provisions relating to the scope of use of the Service and the protection of Confidential Information. Subscriber shall reasonably cooperate in such audit.
15. DISPUTE RESOLUTION
15.1. Governing Law. This Agreement and all matters arising out of this Agreement or use of the Service shall be governed by the substantive laws of the United States and the substantive laws of the State of New York without reference to its conflict of laws principles.
15.2. Exclusive Jurisdiction and Venue. Any action of any kind by any Party against the other Party arising as a result of this Agreement or the use of the Service may only be brought in the state and federal courts of competent jurisdiction located in New York. The Parties agree to the exclusive jurisdiction and venue of such courts for such purposes and each waives any claim of lack of personal jurisdiction in New York and any claim that New York is a forum nonconveniens.
15.3. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM SUBSCRIBER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. GENERAL PROVISIONS
16.1. Assignment. Subscriber may not sell, pledge assign, sublicense or otherwise transfer or share any rights granted in this Agreement or delegate its obligations under this Agreement to any person without the prior written consent of SitePod, which consent shall not be unreasonably withheld. Any attempted sale, pledge, assignment or sublicense, or other transfer in violation hereof shall be void ab initio and of no force and effect. Any authorized assignment by Subscriber hereunder will not be valid unless the assignee claiming an assignment through Subscriber agrees to perform all of Subscriber’s obligations and the terms of this Agreement. SitePod may assign its rights and delegate its obligations under this Agreement at any time without the consent of Subscriber or Subscriber’s permitted assigns.
16.2. Binding Effect. This Agreement shall be binding upon and inure to the benefit of only the Parties hereto and their respective permitted successors and assigns.
16.3. Change in Law. In the event either of the Parties obtains a legal opinion by independent regulatory counsel that that applicable statutes, regulations or court decisions are amended, modified or officially interpreted in a manner substantially affecting the terms and conditions of this Agreement, the Party obtaining such opinion shall notify the other Party and provide the other Party with a copy of the opinion. The Parties shall then, for a period of thirty (30) days (“Resolution Period”) enter into good faith negotiations to amend this Agreement to revise the provisions identified by counsel. If the matter in good faith cannot be renegotiated (i.e., restructured or unwound, if necessary, to cure the problem) within the Resolution Period, any Party may terminate this Agreement upon thirty (30) days’ written notice.
16.4. Construction and Interpretation of the Agreement. The Parties have each had an opportunity to review this Agreement and discuss it carefully with their respective legal counsel. Accordingly, this Agreement shall be given a neutral interpretation and any ambiguity in the Agreement shall not be construed more favorably toward one Party than the other Party, regardless of which Party primarily drafted the Agreement.
16.5. Export Regulations. To the extent export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services, Subscriber agrees to comply with such laws and regulations. Subscriber agrees not to export or cause to be exported any component of the Service or Subscriber Data to any county to which, under the laws of the United States, Subscriber is or might be prohibited from exporting any such component or Subscriber Data.
16.6. Force Majeure. Except for the payment of any fees by Subscriber, if performance of this Agreement by either Party is prevented, hindered, delayed, or otherwise made impracticable by reason of any food, riot, terrorism, earthquake, fire, judicial or governmental action, labor disputes, act of God, crashes of the servers hosting the SitePod Website or other causes beyond the control of such Party, that Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
16.7. Headings. The article, section, and paragraph headings contained in this Agreement have been inserted only as a matter of convenience and for reference, and in no way shall be construed to define, limit or describe the scope or intent of any provision of this Agreement.
16.8. Notice.
16.8.1. Address. All notices required or permitted to be sent under this Agreement to a Party shall be delivered to the address specified below: Either Party shall have the right to change the notice address upon five (5) Business Day’s written notification to the other Party.
To SitePod: JJ Rabinowich
SitePod, LLC
5103 16th Avenue
Brooklyn, NY 11204
To Subscriber:
16.8.2. Effective Date of Notice. Any notice pursuant to this Agreement shall be given in writing by one of the methods referenced in this Paragraph 16.10.2 and will be deemed effectively given to another Party on the earliest of the date: (a) one Business Day after receipt of confirmation if such notice is sent by facsimile; (b) one Business Day after delivery of such notice into the custody and control of an overnight courier service for next day delivery, provided such notice is delivered; and (c) one Business Day after delivery of such notice in person; in each case to the appropriate address specified in Paragraph 16.8.1 (or to such other address as a Party may designate by notice, in accordance with Paragraph 16.8.1 to the other Party).
16.9. Relationship of the Parties. SitePod and Subscriber are, and shall remain, independent contractors. This Agreement is not intended to, does not and shall not be construed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between SitePod and Subscriber.
16.10. Severability. If any provision of this Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.
16.11. Subscriber’s Authority. Subscriber represents and warrants that (a) Subscriber is an entity duly organized, validly existing and in good standing in the jurisdiction of its organization and any other jurisdiction in which Subscriber maintains locations from
which its Authorized Users will be accessing the Service; (b) Subscriber has obtained all approvals, permits, or other authorizations required for Subscriber to enter into and perform its obligations under this Agreement; and (c) the purchase of any services contemplated herein does not violate or conflict with any contract to which Subscriber is bound.
16.12. Third Party Beneficiaries. This Agreement is for the sole benefit of SitePod and Subscriber, any indemnitees named herein and the permitted successors and assigns of the Parties. Nothing herein, express or implied is intended to or shall confer upon any person not referred to in this Section 16.12 any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
16.13. Waiver. Neither Party shall be deemed to have waived any of its rights under this Agreement unless the waiver is in writing and signed by Party against whom the waiver is to be enforced. No delay or omission of a Party in exercising or enforcing a right or remedy under this Agreement shall operate as a waiver thereof. No waiver by a Party of any default or nonperformance shall be deemed as a waiver of prior or subsequent default of the same or of other provisions of this Agreement. The waiver or failure of either Party to exercise any right provided for in this Agreement or the failure to enforce any right or provision shall not be deemed a waiver of any further right hereunder.
17. SERVICE LEVEL AGREEMENT
17.1. System Availability. SitePod will ensure that the Service is available for use by Subscriber twenty-four (24) hours a day, seven (7) days per week, excluding scheduled maintenance or downtime. SitePod will endeavor to provide Subscriber with forty-eight hours’ notice of any planned downtime. SitePod will rely on the records of its suppliers to monitor and report downtime of the SitePod Website.
17.2. Exclusions. The foregoing availability commitment excludes Service unavailability due to malfunctions or unavailability of hardware, software, telecommunications equipment or other equipment owned or leased or utilized by Subscriber through an arrangement Subscriber has made in its own name with a third party (e.g., an Internet service provider, a DSL provider, telecommunications services provider, electricity provider, etc.) or catastrophic circumstances reasonably beyond the control of SitePod or its suppliers such as acts of God, acts of government, or Internet service provider failures or delays.
17.3. Security. By written agreement, SitePod will require each of its subcontractors involved in hosting the SitePod Website to adopt reasonable security safeguards to protect Subscriber Data.
17.4. Backups. SitePod will arrange for regular periodic backups of the Service’s databases, the Software, and the SitePod Content.