LICENSE AND SUBSCRIPTION AGREEMENT
This License and Subscription Agreement (the “Agreement”) is between Under, INC (“Under”) and the customer identified in the accompanying Order (“Customer”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. THIS AGREEMENT GOVERNS THE LICENSE AND USE OF THE HOSTED SERVICE AND SOFTWARE OFFERED BY UNDER AND PROVIDED TO CUSTOMER UNDER THE ORDER SIGNED OR AGREED TO BY CUSTOMER. BY AGREEING TO THE ORDER, YOU ARE INDICATING YOUR ACCEPTANCE OF THIS ENTIRE AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT AGREE TO THE ORDER.
This Agreement is effective between Customer and Under as of the date Customer signs the Order (the “Effective Date”). The person accepting the Order and this Agreement on behalf of Customer represents that he or she has the authority to bind such entity to these terms and conditions.
- Under has developed certain Software, as defined below, enabling online completion and signing of form documents, that is available to access on Under’s Website as a Hosted Service, together with other content and materials provided by Under on the Website or otherwise.
- Customer desires to access and use the Hosted Service, and Under desires to provide such access to Customer, subject to the terms and conditions of this Agreement.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Under and Customer agree as follows:
In consideration of the mutual promises set out in this Agreement, Under and Customer agree as follows:
- “Authorized Users” means individual employees of Customer who are authorized by Customer to access and use the Hosted Service. Subject to Under’s prior written approval, Authorized Users may also include consultants or independent contractors of Customer who are using the Hosted Service solely for Customer’s own internal business purposes.
- “End User(s)” means Customer’s end user clients and potential clients, and any others who will be accessing, filling out and signing Customer Forms online through the Hosted Service.
- “Confidential Information” means Under’s pricing, Customer Data, either party’s non-public business and technology information, the Software, trade secrets, any written materials marked as confidential and any other information which reasonably should be understood to be confidential. Confidential Information excludes information that the receiving party can document: (i) is or becomes generally available to the public without fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to its disclosure by the other party; (iii) is independently developed without the use of any Confidential Information of the disclosing party; or (iv) is obtained without obligation of confidentiality from a third party who has the right to disclose it. The receiving party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.
- “Customer Data” means all electronic data or information input by End Users, Customer and Authorized Users into the Hosted Service, including any Personal Data of End Users or other individuals. Customer Data does not include Feedback or Usage Data.
- “Customer Forms” means form documents of Customer that Customer uploads to the Hosted Service, for End Users to fill out and sign online.
- “Documentation” means Under’s online user instructions and/or manual for the Hosted Service, as updated by Under from time to time.
- “Feedback” means any suggestions, enhancement requests, complaints or other feedback from Customer, Authorized Users or End Users relating to the Hosted Service, Software or Under’s Services.
- “Hosted Service” means the subscription service providing online access to the hosted Software and Customer Forms, and any related products and Services offered by Under that are made available online at the Website, including any associated offline components, as described in the Documentation. The Hosted Service will be hosted either on Under servers or the servers of a third party that in the business of hosting web- or cloud-based software applications. “Hosted Service” excludes any third party applications and software products that are owned by entities or individuals other than Under and that may interoperate with the Hosted Service or Software, including but not limited to those listed or provided on the Website or together with the Hosted Service.
- “Malicious Code” means any virus, worm, trap door, back door, snoopware, spyware, malicious logic, Trojan horse, time bomb or other malicious software functionality that would intentionally erase or render the Hosted Service unusable or intentionally interfere with the use of the Hosted Service or an Authorized User’s computer system or software.
- “Modifications” means updates, upgrades, patches, improvements, enhancements, bug fixes, additional features, and other modifications to the Software or Hosted Service.
- “Order(s)” means the electronic or written documents for placing orders hereunder for Customer’s access to the Hosted Service, to add additional licenses to Customer’s account, or for any other Services of Under. Orders are subject to acceptance by Under. Orders are incorporated into this Agreement by reference, except as provided in Section 15(a).
- “Security Vulnerability” means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be accidentally triggered or intentionally exploited and result in a security breach, such that Customer Data is compromised or stolen.
- “Services” means technical support, Software maintenance, and other services offered by Under to customers as part of or in connection with the Hosted Service, including consulting or other professional services for which Under may charge a separate fee.
- “Site” means a geographic office or business location of Customer that is authorized to access and use the Hosted Service, as specified in an Order submitted by Customer and accepted by Under.
- “Software” means the Under software that enables Customer’s End Users to fill out and sign documents online for processing by Customer. Under shall make the Software available to Customer as part of the Hosted Service, including Modifications. Software will be provided to Customer only through online access as part of the Hosted Service.
- “Term” means the Initial Term of this Agreement together with any and all Renewal Terms, as those terms are defined in Section 6(a).
- “Usage Data” has the meaning given to such terms in Section 4(c).
- “Website” means the applicable Under website for Customer, where the Hosted Service will be accessed by Customer and its Authorized Users via a Customer login, and/or other web pages designated by Under where resources and Services related to the Hosted Service are provided by Under (excluding third party websites).
- License. Under grants Customer a non-exclusive, non-transferable license, during the term of this license, to access and use the Hosted Service and Software during the Term, and solely for use by (i) Authorized Users who are associated with the particular Site(s) authorized under an Order, and (b) End Users who are doing business with Customer at those Sites. The Hosted Service is subject to the following license terms and limitations:
- Use of Hosted Service. Use of the Hosted Service and Software is limited to Customer’s own internal business purposes and the authorized Site(s) specified in an Order submitted by Customer to Under and accepted by Under, which acceptance shall not be unreasonably withheld. Customer is granted the right (i) to authorize Authorized Users to access and use the Hosted Service and related materials made available as part of the Hosted Service by Under, and (ii) to authorize and instruct End Users to access and use the Hosted Service solely for the purpose of accessing and completing Customer Forms. Customer, Authorized Users and End Users are authorized to use the Software only as part of the Hosted Service, except as otherwise specifically set forth in this Agreement.
- Free Simple or Trial Hosted Service. If Customer is using the Hosted Service under a free trial offer (the “Free Hosted Service”), Under will make the Free Hosted Service available to Customer until the earlier of (a) the end of the free trial period; or (b) the start date of any purchased version of the Hosted Service ordered by Customer. Additional terms and conditions may appear on the web page for ordering the Free Hosted Service. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA CUSTOMER, AUTHORIZED USERS OR END USERS ENTER INTO THE FREE HOSTED SERVICE WILL BE PERMANENTLY LOST WHEN THE FREE HOSTED SERVICE TERMINATES, UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE HOSTED SERVICE BEFORE THE FREE HOSTED SERVICE TERMINATES, OR EXPORTS SUCH DATA PRIOR TO THE TERMINATION OF THE FREE HOSTED SERVICE. THE FREE HOSTED SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR INDEMNIFICATION FROM UNDER OF ANY KIND, NOTWITHSTANDING SECTIONS 10 AND 11 BELOW. UNDER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S, AUTHORIZED USERS’ AND END USERS’ USE OF THE FREE HOSTED SERVICE SHALL NOT EXCEED $50.
- Modifications. Customer acknowledges and agrees that the Hosted Service, Website, Software and other materials that may be made available as part of the Hosted Service may be updated and changed from time to time with Modifications, in Under’s sole discretion.
- Proprietary Rights Notices. Customer shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by Under on or in the Hosted Service, Website, any Software, or related Documentation.
- Restrictions. Customer and its Authorized Users will not:
- use the Hosted Service for any unauthorized Site or business, including for the benefit of any third party business;
- modify or create derivative works of the Hosted Service or Software
- use the Hosted Service or Software to develop a competitive product or service, or copy any features, functions or graphics of the Hosted Service, Software or Website, or allow a direct competitor of Under to access the Hosted Service through Customer’s or its Authorized Users’ accounts;
- reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, algorithms, programming methods or Confidential Information from the Software or Hosted Service, except to the extent expressly permitted by applicable law;
- upload any Customer Form or Customer Data that contains any libelous or unlawful material or any materials or instructions that may cause harm or injury, or violates any person’s right of privacy or any copyright, trademark, or other intellectual property rights.
- use the Hosted Service in any manner which could damage, disable, overburden, or impair the Hosted Service or interfere with any other party’s use and enjoyment of the Hosted Service.
- obtain or attempt to obtain any materials or information on or through the Hosted Service through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining.
Customer is responsible for ensuring its Authorized Users’ compliance with the terms of this Agreement and is liable for any breach of this Agreement by an Authorized User.
- Customer’s Obligations. Customer is responsible for Customer Data, including Personal Data as entered into, supplied or used by Customer and its Authorized Users and End Users in the Hosted Service and Customer Forms. Customer is solely responsible for determining the suitability of the Hosted Service for Customer’s business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Hosted Service.
- Suspension of Access. Under may suspend Customer’s, Authorized Users’ and/or End Users’ access to the Hosted Service, or remove or disable any account, data or content that Under reasonably believes violates this Agreement. Under will use reasonable efforts to notify Customer prior to any such suspension or disablement, unless Under reasonably believes that: (a) it is prohibited from doing so under applicable law or any judicial or governmental process; or (b) immediate action by Under is necessary to prevent harm to the Hosted Service or an individual. In such cases, Under will provide notice as soon as is feasible and permissible.
- Geographic Scope of License. The parties agree that the scope of the licenses and rights granted hereunder is limited to the U.S., unless otherwise expressly agreed in writing by the parties. Customer acknowledges that any use of the Hosted Service for End Users residing outside of the U.S. will require additional due diligence efforts to ensure that that the parties are able and ready to comply with data security, privacy, export, and other applicable laws and regulations.
- Third Party Software. The parties acknowledge that the Software may contain open source code and other third party software components. Open source components are subject to the applicable third party license terms, which are available upon request. Any other third party software that is embedded in the Software, or provided by Under as an integrated part of the Hosted Service, is sublicensed by Under to Customer pursuant to the applicable terms of this Agreement, unless Under provides a separate third party license(s) for such third party software to Customer. Third party software is licensed only for use in connection with the Hosted Service, unless otherwise permitted under an open source license.
- Other Services.
- Technical Support and Maintenance. Under will provide Customer with telephone-based and web-based technical support and maintenance Services to assist Customer in utilizing the Hosted Service. Support Services will be available during Under’s regular business hours. Customer will also have email access to the Under technical support division via email@example.com. Under technicians will use reasonable, good faith efforts to resolve Customer’s problems. Under will respond to support telephone calls or e-mail contacts based on: (a) the order that such calls or e-mail are received; and (b) the relative importance of such calls or e-mail as reasonably determined by Under. Under may update its support and maintenance policies from time to time, upon notice to Customer.
- Professional Services. Upon Customer’s request and subject to a separate Order or statement of work (SOW) between the parties, Customer may purchase training, consulting services, or other professional Services from Under. All such Services are subject to the terms and conditions set forth in such Order or SOW as well as the terms and limitations of this Agreement.
- Under Ownership. Under owns and retains all right, title and interest in and to the Hosted Service, including the Software and Documentation, Under’s trademarks and service marks, the Website and its contents, any custom developments, Modifications, training and other written or electronic documents and materials produced by Under that relate to the Hosted Service, and all intellectual property rights in the foregoing. The Hosted Service, including the Software, its accompanying Documentation and materials, and any other materials made available to Customer by Under through the Website or otherwise, may be used by Customer, Authorized Users and End Users only for the purposes described in this Agreement. Any rights not expressly granted herein are reserved by Under. Neither this Agreement nor any other agreement between the parties changes ownership of any pre-existing software or other materials.
- Customer Ownership. As between the parties, Customer owns and shall retain all right, title and interest in and to all Customer Data and to Customer Forms.
- Metadata and Usage Data. The Hosted Service may track metadata and other usage data related to Customer’s, Authorized Users’ and End Users’ use of the Hosted Service (“Usage Data”) and provide such data to Under. Under shall own such Usage Data, excluding any Personal Data incorporated therein. Customer agrees that Under shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Hosted Service and Under’s products and services generally. Under may retain and use Usage Data permanently. To the extent such Usage Data contains any Personal Data, Under shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized (e.g., no name or address attached to the particular data) and/or aggregated, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, Under may share Usage Data in its original form as necessary or appropriate to provide services to Customer and End Users (for example, using a third party to process payments) or to comply with legal obligations or exercise its legal rights.
- Feedback. Under shall have a royalty-free, worldwide, irrevocable, perpetual license to use Feedback and incorporate it into Under’s software, products and services. Under shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Customer in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the licenses granted herein to Customer.
- Fees. Access to the Hosted Service for Customer and its Authorized Users and Users is subject to timely payment of the fees specified in the applicable Order(s) (collectively, the “Fees”). Basic support and maintenance services for the Hosted Service, as described in Section 3(a), are included as part of such Fees at no additional charge. Under may offer optional enhanced support plans for an additional fee.
- Taxes. Customer is responsible for any applicable sales, use or other taxes or duties associated with this Agreement, other than taxes on Under’s net income. If Customer is a tax-exempt entity, Customer must provide a tax-exemption certificate to Under.
- Past Due Amounts. If any amounts owed by Customer are thirty (30) or more days overdue, Under may, without limiting its other rights and remedies: (i) charge interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, on the past due amounts; (ii) terminate this Agreement under Section 6(b) and accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and/or (iii) subject to seven (7) days’ prior written notice to Customer, suspend Customer’s and its Authorized Users’ and End Users’ access to the Hosted Service and Customer Forms thereon until such amounts are paid in full. Customer shall also be liable for all costs of collection, including reasonable attorney’s fees, whether or not a suit is instituted.
- Other. All amounts paid under this Agreement are payable in U.S. dollars. All Orders are final and all payments are non-refundable, other than as expressly set forth in this Agreement.
- Term and Termination.
- Term. This Agreement will commence on the Effective Date and will continue for the initial term specified in the applicable Order (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month renewal terms (each a “Renewal Term”) at Under’s then-current rates, unless a different rate is agreed to in a new Order by the parties, subject to termination as set forth below. Unless otherwise specified in the applicable Order, all Orders will continue for the full Term of this Agreement. Orders shall also automatically renew for additional twelve (12) month Renewal Terms, provided that either party may give the other party written notice of non-renewal of this Agreement or any Order at least sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term. this Agreement will automatically renew for additional 12-billing month renewal terms (each a “Renewal Term”) at the then-current rates.
- Termination Without Cause. Either party may terminate this Agreement without cause, effective at the end of the Initial Term or any subsequent Renewal Term, upon at least sixty (60) days’ prior written notice of such termination to the other party.
- Termination For Cause. Either party will have the right to terminate this Agreement for cause at any time, upon written notice, in the event of (i) any material breach of this Agreement by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs.
- Termination of Professional Services Engagements. If Customer and Under have agreed upon a Professional Services engagement in an Exhibit to this Agreement, such engagement may be terminated prior to completion thereof only for cause under Section 6(c) or by mutual written agreement to terminate. If Customer terminates a Professional Services engagement prior to completion thereof without cause or if Under terminates a Professional Services engagement due to a material breach by Customer, Customer will owe Under (i) payment in full for all work performed by Under through the date of termination, and (ii) payment of fifty percent (50%) of the agreed fees for the remaining work that was not yet performed.
- Effect of Termination. Upon final termination of this Agreement, Customer and its Authorized Users’ access to the Hosted Service will terminate. Customer will promptly pay all outstanding amounts owed to Under. If Customer has terminated this Agreement without cause, or of Under has terminated this Agreement due to a breach by Customer, before the end of the then-current Initial Term or Renewal Term (as applicable), Customer shall owe Under all subscription fees for the remainder of Customer’s then-current subscription term. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Until thirty (30) days after termination of this Agreement, Customer may request Under to provide a copy of its Customer Data in the Hosted Service database. Such service is subject to an additional service fee, at Under’s then-current rates. After thirty (30) days from the date of termination of this Agreement, Under may delete Customer Data from its system. Sections 2(d), 2(e), 2(f), 4, 5, 6(e), 7, 8, 11, 12 and 15 will survive termination of this Agreement.
- Confidential Information. The receiving party (i) shall not disclose Confidential Information or any information derived therefrom to any person, other than employees and independent contractors with a need to know such information and who are obligated to keep such information confidential; or (ii) use the Confidential Information for any purpose, except as expressly permitted by this Agreement. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of this Agreement.
- Personal Data and Privacy.
The types of Personal Data Under processes include contact information (such as name, address, email, telephone number and IP addresses) for End Users and Authorized Users. End User information requested in connection with the Customer Forms may also include date of birth, social security number, business/employer name and address, tax ID, banking data (statements), copies of voided checks, copy of the End User’s driver’s license, and other personal information. Under’s third party payment processor also receives and processes payment information, including payment card information and data, as set forth in subsection (e) below.
Under does not process Personal Data of minors under the age of thirteen (13). Minors’ Personal Data must not be submitted by Customer, Authorized Users or End Users to the Hosted Service.
- Additional Uses of End User Personal Data. In addition to the uses set forth above, Customer agrees that Under may use the Personal Data of an End User to contact such End User and provide the End User with a login to access the Hosted Service so that the End User may view the data they entered into a Customer Form. If an End User uses the login and authorizes Under to retain such End User’s Personal Data in an account for such End User, Under may retain the End User’s Personal Data for so long as permitted by the End User and give the End User the option to use his or her Personal Data for other transactions and forms hosted by Under for other customers. Under no circumstances will Under sell such Personal Data to third parties or share Personal Data for profit. Under’s receipt of Fees for Hosting Services shall not be deemed to violate this subsection (d).
- Payment Information Security. All payment card information and other payment information of Customer (“Payment Data”) will be processed by an independent third party payment processor. Under and its employees will not have access to Payment Data or store such data on its servers, other than minimal information such as the last four digits of a credit card or bank account. Under engages to use a qualified third party payment processing vendor that offers a token method or similarly secure method for payment and that has committed to comply with PCI DSS standards. However, if a Customer Form requests ACH, bank account or other payment information from End Users who fill out that form, that information will be stored in the Hosted Service, in encrypted form.
- Processing in the U.S. The servers that host Under’ Hosted Service, Software, and Website are based in the United States of America and all content, information, and Personal Data provided through the Website will be received, processed and stored in the United States of America.
- Rights of Data Subjects. Under will comply with End Users’ and other individuals’ requests in respect of the exercise of their rights with respect to their Personal Data under applicable law. Subject to applicable law, Under shall notify Customer if it receives a request from an End User or other individual for whom it is storing Personal Data in respect of the exercise of the privacy rights of such individual.
- Data Breach Notification. In the event of any breach of the security or confidentiality of Customer Data, Under will promptly inform Customer of the breach as required under applicable law. Under and Customer will promptly coordinate regarding informing any affected individuals of the breach as required under applicable law. In addition, Under will make available to Customer all information reasonably necessary for Customer to demonstrate or maintain its compliance with applicable laws regarding data privacy and protection.
- Retention of Personal Data. Personal Data shall be retained as appropriate and legally permissible in connection with Customer’s, Authorized Users’ and End Users’ use of the Hosted Service, Software, Services and Website. Under shall add, update or delete Personal Data as instructed by Customer for Authorized Users or End Users, or by the Authorized User or End User. Under shall delete an individual’s Personal Data in response to such individual’s request to delete that data. Under’s practice is to remove deactivated Personal Data from its central database within a reasonable time, usually after 60 days, and permanently delete such data within a reasonable time, usually after 1 year. Customer authorizes Under to delete Customer Data from its systems after 30 days from the date of termination of this Agreement. Personal Data will only be further retained by Under as allowed or required under applicable law or regulatory provisions mandating record retention.
- Customer’s Warranties. Customer represents and warrants to Under that:
- Customer has full power and authority to enter into this Agreement and make the agreements specified herein.
- Customer has the right to provide the Customer Forms to Under for the uses specified in this Agreement, and the Customer Forms and Customer’s and Under’s use thereof as contemplated by this Agreement do not violate any applicable law or regulation.
- Customer shall not have any right or authority to make any representations or warranties on Under’s behalf, except as expressly approved in writing by Under; or to assume or create any obligations or responsibilities, express or implied, on behalf of Under; or to bind Under in any way; except as expressly set forth in this Agreement. Under shall not be liable for any unauthorized representations or warranties made by Customer.
- Customer Data will not violate any person’s right of privacy or copyright, trademark, or other intellectual property rights, and Customer and its Authorized Users will not transmit any such materials to Under.
- Under Warranties and Disclaimers.
- Under Warranties. Under warrants to Customer as follows:
- Under has full power and authority to enter into this Agreement and make the agreements specified herein.
- Under warrants, during the Term, that the Hosted Service and Software, when used properly and in accordance with its Documentation and this Agreement, will be free from a reproducible defect that materially adversely affects the operation of the Hosted Service or Software, as described in the Documentation.
- Under shall use reasonable means in the design and writing of its Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Under will take the steps set forth in Section 10(c) below.
- Under will use industry-standard, commercially reasonable efforts to keep Malicious Code out of the Software.
- Exclusions. Under’s warranties exclude non-performance issues that result from (i) modification of the Hosted Service or Software by Customer or any person or entity other than Under; (ii) defects or problems that are outside the reasonable control of Under, including defects or damage resulting from use of the Hosted Service in other than its normal and authorized manner; or (iii) Customer’s or its Authorized Users’ failure to comply with due standards of care. Customer will reimburse Under for its reasonable time and expenses for any services provided at Customer’s request to remedy excluded non-performance issues. The Free Hosted Service is also excluded from Under’s warranties, as set forth in Section 2(b).
- Remedies. In the event of a breach of any of the above warranties, Customer shall contact Under’s designated support personnel. As Customer’s exclusive remedy and Under’s sole obligation to Customer for any material defect or Security Vulnerability in the Software or Hosted Service for which Under is responsible under the above warranties, Under shall use reasonable efforts to correct or cure any such defect, provided that it can be reproduced by Under. If Under cannot correct the defect within a reasonable time then, at Under’s option, Under will replace the defective Software or Hosted Service with a functional equivalent or terminate this Agreement and refund any prepaid and unused fees for the defective Software or Hosted Service.
- Limitation of Warranties. Except as expressly set forth herein or agreed in writing by an authorized official of Under, the Hosted Service (including the Software, Documentation and Website) and all Under services are provided “AS IS”. UNDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, whether arising by law, by reason of custom or usage of trade, or by course of dealing. Under does not warrant that the Hosted Service, Software, Documentation, Website or its services are error-free. Warranties are not transferable to a third party, other than in connection with assignment of this entire Agreement under Section 14.
- Mutual Indemnity. Each party (as the “Indemnifying party”) shall defend or settle at its expense any third party claim or action brought against the other party (the “Indemnified party”) arising out of any grossly negligent acts or willful misconduct of the Indemnifying party or its personnel. If both parties are at fault, each party will pay its proportional share of the resulting expenses or damages.
- Under Indemnity. Under shall defend or settle at its option and expense any third party claim or action brought against Customer alleging that the Software infringes a U.S. registered patent, copyright, or trademark. Under shall have no liability for any infringement claim to the extent such claim is based on: (1) modification of the Software other than by Under; (2) any open source or other third party software; (3) Customer’s use of the Free Hosted Service; or (4) the combination, operation or use of the Software with any software, hardware or other materials not furnished by Under. Under may at its option and expense: (a) replace or modify the Software so that it becomes non-infringing; or (b) procure for Customer the right to continue using the Software. If neither of these alternatives is reasonably available, Under may terminate this Agreement and refund to Customer any prepaid fees for the period after termination. This Section 11(b) states the entire extent of the liability and obligations of Under with respect to any alleged infringement or misappropriation of intellectual property rights.
- Customer Indemnity. Customer shall defend or settle at its option and expense any third party claim or action brought against Under arising out of the Customer Forms and Customer’s use of the Customer Forms and any information contained therein, including any claims of infringement or privacy breaches.
- Indemnification Procedure. When an indemnifiable claim is made by an End User or other third party, the Indemnified party shall promptly notify the Indemnifying party of such claim, grant the Indemnifying party sole control of the defense and all related settlement negotiations, and provide the Indemnifying party with the assistance, information and authority reasonably necessary to defend the claim, at the Indemnifying party’s expense. The Indemnifying party will pay any costs or damages finally awarded against the Indemnified party that are attributable to an indemnifiable claim, or any amounts agreed by the Indemnifying party in settlement of the claim. The Indemnified party may not settle a claim without prior written consent of the Indemnifying party, which shall not be unreasonably withheld. The Indemnified party may, at its option and expense, be represented by separate counsel in any such action.
- Limitations of Liability. IN NO EVENT SHALL UNDER OR ITS LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA, INTERRUPTIONS OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE HOSTED SERVICE OR SOFTWARE, INCLUDING WHERE SUCH TYPES OF DAMAGES RELATE TO THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO PERSONAL DATA TRANSMITTED, STORED OR OTHERWISE PROCESSED, REGARDLESS OF WHETHER UNDER HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE AND STRICT LIABILITY). UNDER’S AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO UNDER DURING THE ONE (1) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. OPEN SOURCE COPYRIGHT HOLDERS HAVE NO LIABILITY TO CUSTOMER FOR ANY REASON. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. The above limitations may be superseded by law in some jurisdictions.
- Publicity. Any press releases or other public statement regarding this Agreement may be made only with the other party’s consent, which shall not be unreasonably withheld, except that a party may make public disclosures to the extent required by law or regulation, and Under is permitted to include Customer’s name on customer lists that may be posted on Under’s website or provided to potential customers and other third parties.
- Assignment and Acquisitions. Neither party may assign or transfer this Agreement or any of its rights or duties hereunder to any third party without prior written consent of the other party, which may not be unreasonably withheld. Notwithstanding the foregoing, a party may, upon written notice to the other party, assign this Agreement to a third party in connection with a merger with such third party or acquisition of all or substantially all of the assigning party’s stock or assets to which this Agreement relates.
- No Waiver. Any waiver by either party of a default or obligation under this Agreement will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under this Agreement or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.
- Choice of Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Illinois. Should any dispute arise concerning this Agreement and/or Under’s products or services, venue shall be laid in Chicago, Illinois. Illinois state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts.
- Severability. If any provision of this Agreement is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of this Agreement shall remain in full force and effect.
- Export Compliance. Customer may not use, export or re-export any data, content or materials the Software in any form in connection with this Agreement in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government authorizations.
- Notices. All notices or other communications required under to this Agreement will be in writing and will be delivered personally, or mailed by registered or certified mail, return receipt requested, or sent by commercial overnight delivery service with provisions for a receipt, or sent by confirmed facsimile or e-mail, to the address of the receiving party set forth in the applicable Order or such other address a party may specify by written notice.
Notwithstanding the foregoing, Customer specifically agrees to receive and/or obtain notices and communications from Under related to the Hosted Service in the form of Electronic Communications posted to the portal of the Hosted Service. “Electronic Communications” includes, but is not limited to, notices of scheduled downtime, notices of required payments, notices or disclosures that federal or state laws or regulations require that Under provide to its customers, and any other communications regarding Customer’s relationship with Under. Customer acknowledges that it is able to retain Electronic Communications by printing them or downloading and saving them. Customer agrees that Electronic Communications provided via the Hosted Service are reasonable and proper notice for the purpose of any applicable laws and regulations, including that communications be provided in writing and/or in a form that Customer may keep.
- Independent Contractors. The parties are independent contractors. Customer is not an agent of Under and will not represent to any third party that it is an employee or agent of Under. Customer shall have no authority to enter into any contract on behalf of Under.
- Injunctive Relief. Each party acknowledges that the other party’s intellectual property and Confidential Information is highly valuable to the other party, that any breach of such party’s obligations with respect to confidentiality and/or use of the other party’s intellectual property, including any breach by Customer of any restrictions on use of the Hosted Service or the scope of the licenses granted by Under herein, may severely damage the other party, the extent of which damage would be difficult to ascertain and, therefore, that the other party is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.
- Force Majeure. A party shall be excused from delays or failure to perform its duties (other than payment obligations) to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
- Electronic Signatures. Each party agrees that if it, or an Authorized User or End User, or any other party, draws, types or attaches their signature or any other text, symbol or image in a box or space associated with an Order, contract, or any other terms and conditions related to this Agreement, such party is agreeing to be legally bound by such terms and conditions. Customer and Under agree that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature. No third party certification or verification is necessary to validate an Electronic Signature.