2CLIXZ and In-Map License Agreement
THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF 2CLIXZ AND IN-MAP SERVICES.
IF CUSTOMERS ARE ALLOWED TO REGISTER FOR A FREE TRIAL, THIS AGREEMENT WILL ALSO GOVERN THE FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERS TO THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMERS ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEY REPRESENT THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMERS MUST NOT ACCEPT THIS AGREEMENT AND ARE NOT ALLOWED TO USE THE SERVICES.
Customers are not allowed to access the Services if Customer are 2CLIXZ’s or In-Map’s direct competitor, except with ISN-Partners’ prior written consent. In addition, Customer is not allowed to 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 Feb 27th, 2017. It is effective between Customer and 2CLIXZ or In-Map as of the date of Customer accepting this Agreement.
"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.
"Features List" means the online directory of applications located on the website www.In-Map.com.
"Non-In-Map Applications" means online applications and offline software products which are provided by entities or individuals other than In-Map and are clearly identified as such, and which interoperate with the In-Map software, including but not limited to those listed on the Features List and those identified as Connectors or otherwise.
"Order Form" means the documents for placing orders hereunder, including addenda, which are entered into between the User and In-Map or any of In-Map (or ISN-Partners) Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services/Subscriptions/Features" means Services/Subscriptions that Customer or Customer’s Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Free Trial" means the products and services that are ordered by Customer under a free trial or an Order Form and made available by In-Map online via a customer login, including associated offline components.
"Customer", means any individual or other legal entity for which the Customer is accepting this Agreement, and Affiliates of that company or entity, whether using the Software under free trial or as purchased Software.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"User Guide" means the online user guide for the Services, accessible via login.
"Users" means individuals who are authorized by ‘Customer” to use the Services, if they are not the Customer themselves, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords (free for trial, free for use, or paying). Users may include but are not limited to Customer employees, consultants, contractors and agents, and third parties with which Customer transact business.
"In-Map" means the ISN-Partners Ltd., its affiliates, or parent company. (Ref to Par 13 for Notices, Governing Law and Jurisdiction).
"Customer Data" means all electronic data or information submitted by Customer to the Purchased Services.
2. FREE TRIAL
If Customer receives a free trial, In-Map will make one or more Features available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered or is registering to use the applicable Service or (b) the start date of any Purchased Services ordered by Customer. 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 CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR THE CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. LESS FUNCTIONALITIES IN THE FINAL VERSION MAY RESULT IN LOSS OF DATA.
NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PURCHASED SERVICES/SUBSCRIPTIONS
3.1. Provision of Purchased Services. In-Map will make the Purchased Services available to Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agrees that the 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 In-Map regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services/Subscriptions are purchased as User subscriptions + Feature deliveries and may be accessed by no more than the specified number of Users or assets, (ii) additional and/or Asset subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User and/or Asset subscriptions are added, and (iii) the added and/or Asset subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only 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.
4. USE OF THE SERVICES
4.1. In-Map Responsibilities. In-Map shall: (i) provide basic support for the Purchased Services to Customer 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 In-Map will give at least 8 hours notice via the Purchased Services and which In-Map shall schedule to the extent practicable during the weekend hours from 12 midnight Friday to 12 midnight Sunday Brussels Time), or (b) any unavailability caused by circumstances beyond In-Map’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving In-Map employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Protection of Customer’s Data. In-Map shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all customer’s Data. In-Map shall not (a) modify Customer’s Data, (b) disclose Customer’s Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by Customer, or (c) access Customer’s Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. In-Map is allowed to contact Customers partners (Suppliers, etc.) in order to upgrade functionalities or increase the syncing of data between the parties. Both parties agree that data can be used in statistics as aggregate data only. Aggregate data describes data combined from several measurements. In aggregate data, In-Map replaces groups of observations with summary statistics based on those observations. Aggregated data or data aggregates describes high-level data that is composed from a multitude or combination of other more individual data.
4.3. Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of his Data and of the means by which they/he acquired his Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify In-Map 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. Customer shall not (a) make the Services available to anyone other than Users, (unless separately contractually agreed), (b) sell, resell, rent or lease the Services, (unless separately contractually agreed), (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.4. Usage Limitations. In-Map Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of devices or floor plans permitted on the system and, for Software and Features that enable Customers to provide public websites, on the number of page views by visitors to those websites. In-Map can decide to provide real-time information to enable Customer to monitor their compliance with such limitations.
5. NON – IN-MAP PROVIDERS, APPLICATIONS AND FEATURES
5.1. Purchase of non-In-Map applications. In-Map or third parties may from time to time make available to Customer (e.g., through the Features List or other offers) third-party products or services, including but not limited to Non – In-Map Applications and implementation, customization and other consulting services. Any acquisition by Customer of such Non – In-Map products or services, and any exchange of data between Customer and any Non – In-Map provider, is solely between Customer and the applicable Non – In-Map provider. In-Map does not warrant or support non – In-Map products or services, whether or not they are designated by Us as “certified” or otherwise, except IF specified in an Order Form.
5.2. Non – In-Map Applications and Customer’s Data. If Customer installs or enables Non – In-Map Applications or Features for use with the In-Map Software or features, Customer acknowledges that In-Map may allow providers of those Non – In-Map Applications to access Customer’s Data as required for the interoperation of such Non – In-Map Applications with the In-Map Software and Features. In-Map shall not be responsible for any disclosure, modification or deletion of Customer’s Data, resulting from any such access by Non – In-Map Application provider.
5.3. Integration with Non – In-Map Applications, Features and Services. In-Map Software may contain features designed to interoperate with Non – In-Map Applications, Features and Services (e.g., “external Connectors” for data tracking” or Google, Facebook or Twitter applications). To use such features, Customer may be required to obtain access to such Non – In-Map Applications, Features and Services from their providers. If the provider of any such Non – In-Map Applications, Features and Services ceases to make any of these products or services, available for interoperation with the corresponding Service features on reasonable terms, In-Map may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SOFTWARE, FEATURES AND SERVICES
6.1. Fees. Customer shall pay all fees specified in all Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) the number of User/Asset/Customer subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User/Customer subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof. 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.
6.2. Invoicing and Payment. Customer will provide In-Map with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us for wire transfer or other payment. If Customer provides credit card information to In-Map, Customer authorizes In-Map to charge such credit card for all Services listed in the Order Form for the initial subscription term, any part thereof as agreed (quarterly or other payment schedules) and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Services/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, In-Map will invoice Customer in one month in advance or otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due in 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to In-Map and notifying In-Map of any changes to such information.
6.3. Overdue Charges. If any charges are not received from Customer by the due date, then at In-Map’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) In-Map may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for In-Map’s services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized In-Map to charge to Customer’s credit card), In-Map may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend its services to Customer until such amounts are paid in full. In-Map will give Customer at least 7 days’ prior notice that Customer’s account is overdue, in accordance with Section 13.2 Notice Details), before suspending services to Customer.
6.5. Payment Disputes. In-Map shall not exercise its rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, In-Map’s 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"). Customer is responsible for paying all Taxes associated with his purchases hereunder. If In-Map has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides In-Map with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, In-Map is solely responsible for taxes assessable against it based on our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, In-Map reserves all rights, title and interest in and to the Software/Features/Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.2. Restrictions. Customer 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 except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s 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.
7.3. Customer Applications and Code. If Customer, a third party acting on its behalf, or a User creates applications or program code using the Services, Customer authorizes In-Map to host, copy, transmit, display and adapt such applications and program code, solely as necessary for In-Map to provide the Services in accordance with this Agreement. Subject to the above, In-Map acquires no right, title or interest from Customer or Customer licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4. Customer’s Data. Subject to the limited rights granted by Customer hereunder, In-Map acquires no right, title or interest from Customer under this Agreement in or to Customer’s Data, including any intellectual property rights therein.
7.5. Suggestions. In-Map shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.
8.1. Confidential Information definition. 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. Customer’s Confidential Information shall include Customer’s Data; In-Map’s 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 Customer’s 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.
8.2. Protection of Confidential Information. 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3. 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.
9. WARRANTIES AND DISCLAIMERS
9.1. In-Map Warranties. In-Map warrants that (i) In-Map has validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with Non – In-Map Software, Features and Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) In-Map will not transmit Malicious Code to Customer, provided it is not a breach of this subpart (v) if Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
9.2. Customer’s Warranties. Customer warrants that it has validly entered into this Agreement and has the legal power to do so.
9.3. 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.
9.4. Beta Versions of Features. From time to time In-Map may invite Customer to try, at no charge, In-Map’s new products, features or services that are not generally available to In-Map customers ("Betas"). Customer may accept or decline any such trial in his sole discretion. Any Betas will be clearly designated as beta, pilot, limited release, developer preview, non- production or by a description of similar import. Betas are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETAS ARE NOT CONSIDERED "SERVICES/FEATURES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. In-Map may discontinue Betas at any time in In-Map’s sole discretion and may never make them generally available.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by In-Map. In-Map shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer 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 (a "Claim Against Customer"), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court- approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives In-Map written notice of the Claim Against Customer; (b) give In-Map sole control of the defense and settlement of the Claim Against Customer (provided that In-Map may not settle any Claim Against Customer unless the settlement unconditionally releases In-Map of all liability); and (c) provide to In-Map all reasonable assistance, at In-Map’s expense. In the event of a Claim Against Customer, or if In-Map reasonably believes the Services may infringe or misappropriate, In-Map may in their own discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, without breaching In-Map’s warranties under “In-Map Warranties” above, (ii) obtain a license for Customer continued use of the Services in accordance with this Agreement, or (iii) terminate Customer’s User subscriptions for such Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
10.2. Indemnification by Customer. Customer shall defend In-Map against any claim, demand, suit or proceeding made or brought against In-Map by a third party alleging that Customer’s Data, or Customer’s use of the Services is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against In-Map"), and shall indemnify In-Map for any damages, attorney fees and costs finally awarded against In-Map as a result of, or for any amounts paid by In-Map under a court-approved settlement of, a Claim Against In-Map; provided that In-Map (a) promptly gives Customer written notice of the Claim Against him; (b) give Customer sole control of the defense and settlement of the Claim Against In-Map (provided that Customer may not settle any Claim Against In-Map unless the settlement unconditionally releases In-Map of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
10.3. Exclusive Remedy. This Section 10 (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.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.3. Force Majeure : In-Map or its Representative shall not be liable for any failure to perform its obligations under the Agreement because of circumstances beyond the control of In-Map or its Representative, which such circumstances shall include, without limitation: natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, transportation delays, computer and hardware failure, telecommunications failure, electronic mail failure, power failure, failure of Customer or Licensee to cooperate with the reasonable requests of In-Map or its Representative, breach of the Agreement by Customer, misuse of the Product by Customer or third parties, and any other events reasonably beyond the control of In-Map or its Representative.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date Customer accepts it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If Customer elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions/Services/Features. User subscriptions purchased by Customer 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. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless In-Map has given Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 5% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
12.3. 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.
12.4. Refund or Payment upon Termination. Upon any termination for cause by Customer, In-Map shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by In-Map, Customer 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 Customer of the obligation to pay any fees payable to In-Map for the period prior to the effective date of termination.
12.5. Return of Customer’s Data. Upon request by Customer made within 30 days after the effective date of termination of a Purchased Services subscription, In-Map will make available to Customer for download a file of Customer’s Data in a format determined by In-Map, along with attachments in their native format where possible. After such 30-day period, In-Map shall have no obligation to maintain or provide any of Customer’s Data and shall thereafter, unless legally prohibited, delete all of Customer’s Data in In-Map’s systems or otherwise in In-Map’s possession or under In-Map’s control.
12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Software, Features and Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Customer’s Data), 13 (Who Customer is Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. WHO CUSTOMER IS CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General. Customer is contracting with ISN-Partners Ltd. under this Agreement. Customer should direct notices under this Agreement to ISN-Partners. Law and jurisdiction under this agreement are described in this par. 13
Customer is contracting with:
701 Stonehouse Park,
Sperry Way, Stonehouse
Gloucestershire GL10 3UT
VAT: GB 188 8218 57
Notices should be addressed to: same above addresses AND email: info@In-Map.com
The governing law is: United Kingdom
The courts having exclusive jurisdiction are: London, United Kingdom
13.2. Notice Details. 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 of an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. 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.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, other technology In-Map makes available, and derivatives thereof may be subject to export laws and regulations of Europe, the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list.
14.2. 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.
14.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.7. Attorney Fees. Customer shall pay on demand all of In-Map’s reasonable attorney fees and other costs incurred by In-Map to collect any fees or charges due to In-Map under this Agreement following Customer’s breach of Section 6.2 (Invoicing and Payment).
14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, In-Map shall refund to Customer 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.
14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to 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 Customer’s 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.