VALTICS MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement describes the conditions under which VALTICS Customers may acquire, use, and discontinue VALTICS Services. It contains information about commitments the Customer and VALTICS make to one another upon acceptance. Capitalized terms are defined in Section 1.
If a Customer agrees to a free or promotional trial of VALTICS Services for any period, the applicable provisions of this Agreement apply to the trial period, for those Services included in the promotion.
BY ACCEPTING THIS AGREEMENT IN ANY FORM, INCLUDING ONLINE, WRITTEN, OR VERBAL ACCEPTANCE OF A TRIAL PERIOD; OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT; OR BY USING ANY OF THE VALTICS SERVICES, THE CUSTOMER AGREES TO ABIDE BY THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL REPRESENTS THEY HAVE THE AUTHORITY TO BIND THE ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH THEN APPLY TO THE ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL DOES NOT, OR BY VIRTUE OF LIMITED AUTHORITY CANNOT, ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE INDIVIDUAL MAY NOT COMMIT THE COMPANY OR LEGAL ENTITY TO ACCEPT THIS AGREEMENT OR TO USE THE VALTICS SERVICES.
VALTICS MAY PROHIBIT CERTAIN CUSTOMERS FROM ACCESSING ITS SERVICES, FOR PURPOSES OF PROTECTING COMPETITIVE INFORMATION OR FOR OTHER LEGITIMATE BUSINESS PURPOSES.
THE APPLICABLE TERMS OF THIS AGREEMENT BECOME EFFECTIVE ON THE EARLIER OF (A) THE CUSTOMER’S ACCEPTANCE AND USE OF VALTICS SERVICES OR (B) THE EFFECTIVE DATE OF THE CONTRACT PERIOD. THIS AGREEMENT MAY BE UPDATED FROM TIME TO TIME AND ANY CHANGES TO ITS TERMS AND CONDITIONS WILL APPLY TO NEW CUSTOMERS IMMEDIATELY, AND TO EXISTING CUSTOMERS AT THE BEGINNING OF THE NEXT CONTRACT PERIOD, UNLESS THE CUSTOMER ACCEPTS THE CHANGES IN WRITING SOONER.
“Affiliate” means any entity that the Customer directly or indirectly controls, evidenced by direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means VALTICS Services or functionality that may be available to the Customer to use and evaluate, often at no additional charge, and which are clearly designated as pre-release Services.
“Contract Period” means the time period associated with subscription access to Purchased Services as stated in the applicable Order Documents, or, if not specified in the Order Documents, the Contract Period is 365 calendar days from the Effective Date of access to the Purchased Services.
“Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, that individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have accepted access to the Services.
“Customer Data” means electronic data and information supplied by or on behalf of the Customer.
“Customer Experience Representative” means the VALTICS individual designated to assist the Customer with productive use of the Services.
“Documentation” means any of VALTICS’ documentation describing usage guidelines, pricing, policies, and related business information, available from VALTICS online or through the Customer Experience Representative.
“Effective Date” means the starting date of a Contract Period, as defined in the Order Document.
“Included Services” means Services that VALTICS makes available to the Customer without additional charge. Included Services may vary with the type of Services purchased by the Customer.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-VALTICS Application” means Web-based, mobile, offline, or other software functionality that interoperates with a Service, that is provided by Customer or a third party. VALTICS makes no commitment to maintain compatibility with or support Non-VALTICS Applications, other than those identified as being under active authorization by VALTICS.
“Order Document” means any ordering document or online order specifying the level of Purchased Services to be provided and the Contract Period that is entered into between the Customer (or any of its Affiliates) and VALTICS, including any addenda and supplements incorporated therein. An Order Document may contain multiple forms and formats.
“Purchased Services” means Services that the Customer or the Customer’s Affiliate purchases with an Order Document and which describe a specific Contract Period and level of access to be provided to the Services. Promotional trials of the Services do not associate with a specified Contract Period and are not considered Purchased Services.
“Services” means the products and services that are available from VALTICS or its Affiliates, including, but not limited to, disciplined process training, access to the VALTICS repository, software functionality, template construction, and consulting services.
“VALTICS” means the entity, VALTICS LLC, domiciled in the State of Ohio, United States of America, and its Affiliates, the provider of the Services.
“User” means, any individual (who himself or herself may also be the Customer) authorized by the Customer to use Purchased Services or is given temporary access to the Services during a promotional trial, and who has an individual-specific user identification descriptor (USERID) and password to access the Services.
2.- VALTICS RESPONSABILITIES
2.1 Provision of Purchased Services. VALTICS will (a) make the Purchased Services available to the Customer pursuant to this Agreement, and the applicable Order Document, (b) provide applicable VALTICS standard support for the Purchased Services to the Customer at no additional charge, (c) use commercially reasonable efforts to make the online Purchased Services continuously available, except for: (i) planned downtime (of which VALTICS shall give advance notice), and (ii) any unavailability caused by circumstances beyond VALTICS’ reasonable control, including, but not limited to, an act of God, an act of government, flood, fire, earthquake, civil unrest, an act of terror, a strike or other labor problem (other than one involving VALTICS employees), internet service provider failure or delay, Non-VALTICS Application, or denial of service attack, and (d) provide the Purchased Services in accordance with laws and government regulations applicable to VALTICS’ provision of its Services to its customers generally (i.e., without regard for the Customer’s particular use of the Purchased Services), and subject to Customer’s and Users’ use of the Services in compliance with this Agreement, the Documentation and the applicable Order Document.
2.2 Protection of Customer Data. VALTICS will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by the Customer made within 30 days after the effective date of termination or expiration of this Agreement, VALTICS will make Customer Data available to the Customer for export or download. After this 30-day period, VALTICS will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 VALTICS Personnel. VALTICS will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with VALTICS’ obligations under this Agreement.
2.4 Beta Services. From time to time, VALTICS may make Beta Services available to Customers at no charge. Customers may choose to use and evaluate Beta Services or not, in each Customer’s sole discretion.
2.5 Free Offers. If Customer accepts a free offer for any Service(s), VALTICS will make the applicable Service(s) available to the Customer free of charge until the earlier of (a) the end of the free offer period as communicated to the Customer, or (b) the Effective Date of any Purchased Services subscriptions ordered by Customer, or (c) termination by VALTICS in its sole discretion.
ANY CUSTOMER DATA AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR THE CUSTOMER AS PART OF A FREE OFFER WILL BE PERMANENTLY LOST UNLESS THE CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE OFFER, PURCHASES UPGRADED SERVICES, OR EXPORTS THE DATA, BEFORE THE END OF THE FREE OFFER PERIOD. THE CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE FREE OFFER PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. IF VALTICS ELECTS TO DISCONTINUE A FREE OFFER IN ITS SOLE DISCRETION, VALTICS WILL PROVIDE NO LESS THAN FIVE (5) BUSINESS DAYS’ NOTICE TO THE CUSTOMER BEFORE DELETING ANY CUSTOMER DATA.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY VALTICS” SECTION BELOW, DURING ANY FREE OFFER THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VALTICS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE(S) FOR THE FREE OFFER PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE VALTICS’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED AS PART OF THE FREE OFFER SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, VALTICS AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO THE CUSTOMER THAT: (A) THE CUSTOMER’S USE OF THE SERVICES DURING THE FREE OFFER PERIOD WILL MEET THE CUSTOMER’S REQUIREMENTS, AND (B) THE CUSTOMER’S USE OF THE SERVICE(S) DURING THE FREE OFFER PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, THE CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO VALTICS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE OFFER PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. NON-VALTICS PRODUCTS AND SERVICES
3.1 Non-VALTICS Products and Services. VALTICS or third parties may make available third-party products or services, including, for example, Non-VALTICS Applications and implementation and other consulting services. Any acquisition by the Customer of such products or services, and any exchange of data between the Customer and any Non-VALTICS provider, product or service is solely between the Customer and the applicable Non-VALTICS provider. VALTICS does not warrant or support Non-VALTICS Applications or other Non-VALTICS products or services, whether or not they are designated by VALTICS as “certified” or otherwise, unless expressly provided otherwise in an Order Document. VALTICS is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-VALTICS Application or its provider.
3.2 Integration with Non-VALTICS Applications. The Services may contain features designed to interoperate with Non-VALTICS Applications. VALTICS cannot guarantee the continued availability of such Service features and may cease providing them without entitling the Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-VALTICS Application ceases to make the Non-VALTICS Application available for interoperation with the corresponding Service features in a manner acceptable to VALTICS.
4. FEES AND PAYMENT
4.1 Fees. The Customer will pay all fees specified in the Order Document. Except as otherwise specified herein or in an Order Document, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the Contract Period.
4.2 Invoicing and Payment. The Customer will provide VALTICS with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to VALTICS to reflect the Customer’s commitment to follow through on obligations of this Agreement for Purchased Services. If the Customer provides credit card information to VALTICS, the Customer authorizes VALTICS to charge the credit card for all Purchased Services listed in the Order Document for the initial Contract Period and any renewal Contract Period(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Document. If the Order Document specifies that payment will be by a method other than a credit card, VALTICS retains the right in its sole discretion to request documentation from the Customer to demonstrate credit worthiness, and VALTICS will invoice the Customer in advance and otherwise in accordance with the relevant Order Document. Unless otherwise stated in the Order Document, invoiced fees are due Net 30 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to VALTICS and for notifying VALTICS of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by VALTICS by the due date, then without limiting VALTICS’ rights or remedies, (a) those 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, and/or (b) VALTICS may condition future subscription renewals and Order Documents on payment terms shorter than those specified in the “Invoicing and Payment” section.
4.4 Suspension of Service and Acceleration. If any charge owed by the Customer under this or any other agreement for Services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts the Customer has authorized VALTICS to charge to the Customer’s credit card), VALTICS may, without limiting its other rights and remedies, accelerate the Customer’s unpaid fee obligations such that all obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, VALTICS will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to the Customer.
4.5 Payment Disputes. VALTICS will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” sections above if the Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. VALTICS' fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases hereunder. If VALTICS has the legal obligation to pay or collect Taxes for which the Customer is responsible under this section, VALTICS will invoice the Customer and the Customer will pay that amount unless the Customer provides VALTICS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, VALTICS is solely responsible for taxes assessable against it based on its income, property, and employees.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, VALTICS, its Affiliates, and its licensors reserve all of their rights, title, and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
5.2 License by Customer to VALTICS. The Customer grants VALTICS, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-VALTICS Applications and program code created by or for the Customer using a Service or for use by the Customer with the Services, and Customer Data, each as appropriate for VALTICS to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If the Customer chooses to use a Non-VALTICS Application with a Service, the Customer grants VALTICS permission to allow the Non-VALTICS Application and its provider to access Customer Data and information about the Customer’s usage of the Non-VALTICS Application as appropriate for the interoperation of that Non-VALTICS Application with the Service. Subject to the limited licenses granted herein, VALTICS acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-VALTICS Application or such program code.
5.3 License by Customer to Use Feedback. The Customer grants to VALTICS and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by the Customer or Users relating to the operation of the Services.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Customer includes Customer Data; Confidential Information of VALTICS includes the Services, and the terms and conditions of this Agreement, and all Order Documents (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional VALTICS services.
6.2 Protection of Confidential Information. Each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Document to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, VALTICS may disclose the terms of this Agreement and any applicable Order Document to a contractor or Non-VALTICS Application Provider to the extent necessary to perform VALTICS’ obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 VALTICS Warranties. VALTICS warrants that during an applicable Contract Period (a) this Agreement, the Order Documents and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) VALTICS will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-VALTICS Applications” section above, VALTICS will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE AND BETA SERVICES ARE PROVIDED “AS IS,” AND EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by VALTICS. VALTICS will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer from any damages, attorney fees and costs finally awarded against the Customer as a result of, or for amounts paid by the Customer under a settlement approved by VALTICS in writing of a Claim Against Customer, provided the Customer (a) promptly gives VALTICS written notice of the Claim Against Customer, (b) gives VALTICS sole control of the defense and settlement of the Claim Against Customer (except that VALTICS may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives VALTICS all reasonable assistance, at VALTICS’ expense. If VALTICS receives information about an infringement or misappropriation claim related to a Service, VALTICS may in its discretion and at no cost to the Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching VALTICS’ warranties under “VALTICS Warranties” above, (ii) obtain a license for the Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate the Customer’s subscriptions for that Service upon 30 days’ written notice and refund the Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (A) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (B) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by VALTICS, if the Services or use thereof would not infringe without such combination; (C) a Claim Against Customer arises from Services under an Order Document for which there is no charge; or (D) a Claim against Customer arises from a Non-VALTICS Application or the Customer’s breach of this Agreement, the Documentation, or applicable Order Documents.
8.2 Indemnification by Customer. The Customer will defend VALTICS and its Affiliates against any claim, demand, suit or proceeding made or brought against VALTICS by a third party (a) alleging that the combination of a Non-VALTICS Application or configuration provided by the Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) the Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Document, (ii) any Customer Data or the Customer’s use of Customer Data with the Services, or (iii) a Non-VALTICS Application provided by the Customer (each a “Claim Against VALTICS”), and will indemnify VALTICS from any damages, attorney fees and costs finally awarded against VALTICS as a result of, or for any amounts paid by VALTICS under a settlement approved by the Customer in writing of a Claim Against VALTICS, provided VALTICS (A) promptly gives the Customer written notice of the Claim Against VALTICS, (B) gives the Customer sole control of the defense and settlement of the Claim Against VALTICS (except that the Customer may not settle any Claim Against VALTICS unless it unconditionally releases VALTICS of all liability), and (C) gives the Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against VALTICS arises from VALTICS’ breach of this Agreement, the Documentation, or applicable Order Documents.
8.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT THE CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date the Customer first accepts it or uses any of the Services, whether purchased or as part of a Free Offer, and continues until all Contract Periods and, if applicable, Free Offer periods hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. The term of each subscription (i.e., the Contract Period) shall be as specified in the applicable Order Document. Except as otherwise specified in an Order Document, the Contract Period will automatically renew for additional one-year (365-day) terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Contract Period. Except as expressly provided in the applicable Order Document, renewal of promotional or one-time priced subscriptions will be at VALTICS’ applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing that renewal without regard to the prior term’s per-unit pricing.
10.3 Termination. 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.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by the Customer in accordance with the “Termination” section above, VALTICS will refund the Customer any prepaid fees covering the remainder of the Contract Period as specified in all Order Documents after the effective date of termination. If this Agreement is terminated by VALTICS in accordance with the “Termination” section above, the Customer will pay any unpaid fees covering the remainder of the term of all Order Documents to the extent permitted by applicable law. In no event will termination relieve the Customer of its obligation to pay any fees payable to VALTICS for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Free Offers,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-VALTICS Applications,” “Surviving Provisions,” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as VALTICS retains possession of Customer Data.
11. GENERAL PROVISIONS
11.1 Export Compliance. The Services, other VALTICS technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. VALTICS and the Customer each represents that it is not on any U.S. government denied-party list. The Customer will not permit any User to access or use any Services in a U.S.-embargoed country or region, in violation of any then-current U.S. sanctions against the country or region, or in violation of any U.S. export law or regulation. The status of U.S. sanctions can be found at https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information.
11.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction.
11.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between VALTICS and the Customer regarding the Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer documentation (excluding the Order Document) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Document, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.4 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. All rights and remedies available to either party by law are retained.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Documents), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, VALTICS will refund the Customer any prepaid fees covering the remainder of all Contract Periods for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Notices, Governing Law, and Venue. The address to which the Customer should direct notices under this Agreement is 5000 Arlington Centre Blvd, Columbus, Ohio, 43220, USA. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, may depend on where the Customer is domiciled. Without intending to limit either party’s rights or remedies under the law, VALTICS recommends arbitration to resolve disputes prior to pursuit of formal legal proceedings.