(v1.3 – July, 13 2018)

This FuelPlus Application Service Agreement (“Agreement”) contains the terms and conditions that govern your access to and your use of the FuelPlus Application Service. This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use the FuelPlus Application Service (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Capitalized terms not defined else wherein this Agreement shall have the meaning given to them in Section 1 (Definitions). We and you hereby agree as follows:  


“FuelPlus”, “we”, “us” or “our” means FuelPlus Americas LLC., if you are located in North or South America; FuelPlus Europe GmbH if you are located in Europe, Middle East, or Africa; and FuelPlus Asia Inc., if you are located in Australia or Asia. For this Agreement, “located in” means your shipping or physical HQ address. 

“You”, “your” or “Customer” means the person or entity using the Application Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer. 

“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with you, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of your management and policies.  

“Customer Data” means all electronic data or information submitted to the Service by you and/or your Affiliates.  

“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.  

FuelPlus Support Services” means additional services based on the customer’s choice of service level and/or help desk, consulting or other services as customer may order from time to time.

“Order Form” means our estimate, renewal notification or order form in the name of and executed by you or your Affiliate and accepted by us which specifies the Service and implementation services to be provided by us subject to the terms of this Agreement.  

“Help Documentation” means the online help center documentation describing the Service features, including User Guides which may be updated from time to time.  

“Service” means, collectively, our online business application suite (the “FuelPlus Application Service”) and modules as described in the applicable Help Documentation that is procured by you from us in the Order Form and any subsequent Order Form from time to time, including associated offline components, but excluding Third Party Applications and implementation services.  

“Third Party Applications” means online Web-based applications or services and offline software products that are provided by third parties and interoperate with the Service.  

“Users” means individuals who are authorized by you to use the Service, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by you (or by us at your request). Users may include but are not limited to your and your Affiliates’ employees, consultants, contractors and agents.  

“User Guides” means the online user guides for the Service, accessible via login at https://login.fuelplus.com (under “Help”), as updated from time to time. You acknowledge that you have had the opportunity to review the User Guide through a free trial account made available by us.  

“URL Terms” means the terms with which you must comply, which are located at a URL and referenced in this Agreement.  


2. Application Service.

Subject to the terms and conditions of this Agreement and during the Term, we shall make the Service available to you only for your and your Affiliates’ Users for internal business operations. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by us to you for the Service. We shall host the Service and may update the functionality, user interface, usability and other user documentation, training and educational information of, and relating to the Service from time to time in our sole discretion and in accordance with this Agreement as part of our ongoing mission to improve the Service and your use of the Service.


3. Order Forms.

The Service shall be ordered by you or your Affiliates pursuant to Order Forms. Each Order Form shall include at a minimum a listing of the Service and any our professional services being ordered and the fees therefore. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of this Agreement. For any order by you or your Affiliate for the benefit of your Affiliate(s), the term “Customer” shall refer to you and such Affiliate(s). Upon receipt of your Order Form, FuelPlus will review the Order and notify you if FuelPlus accepts or rejects the Order. Any order sent to FuelPlus is not binding on FuelPlus until such time as FuelPlus confirms the Order in writing to you.


4. Restrictions.

You are responsible for all activities conducted under your User logins and for your Users’ compliance with this Agreement. Your use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. You shall not and shall not knowingly permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed in the User Guide; (b) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (c) use the Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) publish, post, upload or otherwise transmit your Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.


5. License Term, Fee, Payment & Taxes. 

5.1. Term of Agreement. The term of this Agreement shall be for 12 months commencing on Effective Date (“Initial Term”), unless otherwise specified on the Order Form or earlier terminated pursuant to Section 8.3, and the Term shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term”) (collectively “Term”). If you have not signed and delivered the Order Form to us regarding the upcoming Renewal Term prior to the expiration of the then current term, the Term shall be automatically extended for successive Renewal Terms of 12 months each, unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.  

5.2. Fees and Payment. You shall pay the fees as specified in attached Order No(s) (Exhibit A) and in future Order Forms. If we provide certain professional services to you, the professional services shall be provided by us pursuant to our Professional Services Addendum (the “PS Addendum”), which, if applicable, is hereby fully incorporated herein by reference. Additional Users and other items procured during a term will co-terminate with and be prorated through the then current end date. Fees for the Service on all subsequent Order forms and renewals shall be set at then our current pricing, unless otherwise agreed to by the parties.  

5.3. Taxes. Our fees do not include any local, state, federal, VAT, or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). You are responsible for paying all Taxes, excluding only taxes based on our net income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.  

5.4. Late Payments. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less. 


6. Proprietary Rights.

6.1. Ownership of Customer Data. As between us and you, all title and intellectual property rights in and to your Customer Data is owned exclusively by you. You acknowledge and agree that in connection with Service, we, as part of our standard Service offering, make daily backup copies of your Data in your account and store and maintain such data for a period of time consistent with our standard business processes, which period shall not be less than one year.  

6.2. FuelPlus Intellectual Property Rights. You agree that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by us or our licensors. Except as provided in this Agreement, the license granted to you does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, we shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by us. Our service marks, logos and product and service names are our marks (the “FuelPlus Marks”). You agree not to display or use the FuelPlus Marks in any manner without our express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. You are not permitted to use these Marks without the prior written consent of such third party which may own the Mark.  


7. Terms of Service.

You agree to the following terms of service.

7.1. Customer Must Have Internet Access. DSL, cable or another high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect your network to the Service, including, but not limited to, “browser” software that supports protocol used by us, including Secure Socket Layer (SSL) protocol or other protocols accepted by us, and to follow logon procedures for services that support such protocols. We are not responsible for notifying you of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by us. We assume no responsibility for the reliability or performance of any connections as described in this Section.  

7.2. Accuracy of Customer’s Contact Information. You shall provide accurate, current and complete information on your legal business name, address, email address and phone number, for you and all Affiliates and maintain and promptly update this information if it should change. 

7.3. Email and Notices. Your email address for communication and notice purposes relating to this Agreement shall be provided on the Order Form (or subsequent email addresses as advised by you). You agree to accept emails from us at the above e-mail address specified under this Section 7.3. We may provide any and all notices, statements, and other communications to you through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. We recommend that the main and billing contact email addresses be group addresses (such as billing@nullcustomer.com) so that notices are reviewed promptly and not delayed due to the absence of one individual. In addition, we may rely and act on all information and instructions provided to us from the above-specified e-mail address.  

7.4. Users: Passwords, Access and Notification. You shall authorize access to and assign unique passwords and user names to the number of Users procured by you on the Order Form. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. You will be responsible for the confidentiality and use of User’s passwords and user names. You will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, your Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under your account. We will act as though any Electronic Communications we receive under your passwords, user name, and/or account number will have been sent by you. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify us of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers. 

7.5. Customer’s Lawful Conduct. The Service allows you to send Electronic Communications directly to us and to third parties. You shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. You are responsible for ensuring that your use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card and social security data only in the designated fields for such data. You shall comply with the export laws and regulations of Germany, the European Union, the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) You represent that you are not named on any German, European Union or U.S. government list of persons or entities prohibited from receiving exports, (ii) You shall not permit Users to access or use the Service in violation of any German, European Union or U.S. export embargo, prohibition or restriction, and (iii) You shall comply with all applicable laws regarding the transmission of technical data exported from Germany, the European Union, the United States and the country in which your Users are located. You will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. You agree not to access the Service by any means other than through the interfaces that are provided by us. You shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. You will not in any way express or imply that any opinions contained in your Electronic Communications are endorsed by us. You shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and your Affiliates. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by you and you waive all of those defenses that you may have as to why you should not be liable for your contractors’, agents’ or Affiliates’ acts, omissions and noncompliance with this Agreement.  

7.6. Transmission of Data. You understand that the technical processing and transmission of your Electronic Communications is fundamentally necessary to use of the Service. You expressly consent to our interception and storage of Electronic Communications and/or your Data, and you acknowledge and understand that your Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by us. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. We are not responsible for any Electronic Communications and/or your Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by us, including, but not limited to, the Internet and your local network.   

7.7. Third-Party Web Sites, Products and Services. We may offer certain Third Party Applications for sale under Order Forms. Any procurement of such Third Party Applications by you shall be subject to the terms specified in such Order Forms.  

In addition, we or third party providers may offer Third Party Applications or services, including implementation, customization and other consulting services related to your use of the Service. Except as set forth in the Order Form, we do not warrant any such Third Party Applications or services, regardless of whether or not such Third Party Applications or services are provided by a third party that is a member of our partner program or otherwise designated by us as “certified,” “approved” or “recommended.” Any procurement by you of any Third Party Applications or services is solely between you and the applicable third party provider. 

We are not responsible for any aspect of such Third Party Applications or services that you may procure or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If you install or enable Third Party Applications or services for use with the Service, you agree that we may allow such third party providers to access your Data as required for the interoperation of such Third Party Applications with the Service, and any exchange of data or other interaction between you and a third party provider is solely between you and such third party provider. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by Third Party Applications or third party providers. No procurement of such Third Party Applications or services is required to use the Service.  

7.8. FuelPlus’ Support. In addition to the Service, we will provide you with FuelPlus Support Services, Help Documentation and other online resources to assist you in your use of the Service. The scope of the FuelPlus Support Services shall depend of the level of services you have ordered, and we have agreed to provide. All FuelPlus Support Services shall be governed by the terms and conditions for our FuelPlus Support Services which are available on our website at www.fuelplus.com/legal, or such other URL as specified by us, which are hereby incorporated by reference. We also offer optional and “for fee” training classes and professional services consultation. You acknowledge that we have extensive experience helping customers improve utilization and realization of benefits of the Service, and that not following our advice and/or not engaging us or our other authorized implementation partner in the provision of professional services may substantially limit your ability to successfully utilize the Service or to enjoy the power and potential of the Service.  

7.9. Service Level. During the Term, our Service offerings will meet the service level specified in the “Service Level Commitment” listed on our website located at www.fuelplus.com/legal, or such other URL as specified by us, which is hereby incorporated by reference. If the applicable Service fails to achieve the service level, then you will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service’s system logs and other records shall be used for calculating any service level events.  

7.10. Security. We shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of your Data. During the Term, we shall maintain PCI DSS compliance for the portions of our Service that store and process credit card data and shall ensure performance of an annual SSAE 16 (SOC 1) / ISAE 3402 Type II Report*. No more than once per year, you may request a copy of our final SSAE 16 (SOC 1) / ISAE 3402 Type II Report* that covers the prior calendar year.  *or similar third party audit to an established industry standard selected by us.  

7.11. Modifications; Discontinuation of Service.  

  1. To the Service. We may make modifications (better “updates, error corrections and the like”) to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify you of any material modifications. We reserve the right to discontinue offering the Service at the conclusion of your then current Term. Unless agreed to in any SOW we shall not be required to complete any modifications to the service.
  2. To Applicable Terms. If we make a material change to any applicable URL Terms, then we will notify you by either sending an email to the notification email address or posting a notice in the Administrator’s instance of your account. If the change has a material adverse impact on you and you do not agree to the change, you must so notify us via legal@nullfuelplus.com within thirty days after receiving notice of the change. If you notify us as required, then you will remain governed by the URL Terms in effect immediately prior to the change until the end of the then current term for the affected Service. If the affected Service is renewed, it will be renewed under our then current URL Terms.


8. Suspension/Termination.

8.1. Suspension for Delinquent Account. We reserve the right to suspend your and any your Affiliates’ access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after we have provided you two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice, or (ii) for which you have not paid for the renewal term and have not notified us of your desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and you understand that such suspension would therefore include Affiliate sub-accounts. You agree that we shall not be liable to you or to any your Affiliate or other third party for any suspension of the Service pursuant to this Section 8.1.  

8.2. Suspension for Ongoing Harm. You agree that we may with reasonably contemporaneous telephonic notice to you suspend access to the Service if we reasonably conclude that your Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of your Service is causing immediate, material and ongoing harm to us or others. In the extraordinary event that we suspend access to the Service, we will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. You agree that we shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section 8.2.  

8.3. Termination for Cause/Expiration. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party.  

Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, you shall have no rights to continue use of the Service. If this Agreement is terminated by you for any reason other than a termination expressly permitted by this Agreement, then we shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of our breach of this Agreement, then you shall be entitled to a refund of the pro rata portion of any subscription fees paid by you to us under this Agreement for the terminated portion of the Term.  

8.4 Handling of Customer Data Upon Termination. You agree that following termination of your account and/or use of the Service, we may immediately deactivate your account and that following a reasonable period of not less than 90 days shall be entitled to delete your account from our “live” site. During this 90 day period and upon your request, we will retrieve and provide you with your Customer Data in form of a database export, provided that you have paid in full all good faith undisputed amounts owed to us. You further agree that we shall not be liable to you nor to any third party for any termination of your access to the Service or deletion of your Data, provided that we are in compliance with the terms of this Section 8.4.


9. Confidentiality. 

For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, your Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate data regarding use of our products and services that does not contain any personally identifiable or your-specific information.  

Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by you; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Service) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.


10. Warranties.

10.1. Warranty of Functionality. We warrant that: (i) the Service will achieve in all material respects the functionality described in the Help Documentation applicable to the Service procured by you, (ii) be performed in accordance with good industry practice (including though the adoption of all reasonably appropriate security measures), (iii) be performed with all reasonable care and skill, and (iv) such functionality of the Service will not be materially decreased during the Term. Your sole and exclusive remedy for our breach of this warranty shall be that we shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Help Documentation and if we are unable to restore such functionality, you shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for your use of the Service for the terminated portion of the Term. We shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to accounting@nullfuelplus.com. The warranties set forth in this Section 10.1 are made to and for your benefit only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the Help Documentation, this Agreement and applicable law.  

10.2. No Virus Warranty. We warrant that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in your-uploaded attachments or otherwise originating from you.  



11. Limitations of Liability.


11.2. Limitations on Liability. Except with regard to amounts due under this Agreement, and a party’s breach of Section 9, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 9 of this Agreement, such maximum liability of either party shall be an amount equal to three (3) times the equivalent of 12 months of subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to you and that, were we to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.   

11.3 Exceptions. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 12 BELOW. Nothing in this Agreement excludes or restricts the liability of either party for death or personal injury resulting from its negligence or liability incurred by one party for fraud or fraudulent misrepresentation by the other party. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.  


12. Indemnification.

12.1. Infringement. We shall, at our own expense and subject to the limitations set forth in this Section 12, defend you from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, patents, trade secrets or trademarks and shall hold you harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.  

Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after we notify you to discontinue use because of an infringement claim, (c) modifications to the Service not made by us, or (d) use of the Service in combination with any software, application or service made or provided other than by us.  

If a Claim of infringement as set forth above is brought or threatened, we shall, at our sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect you against such Claim without cost to you; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to you a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted to you under this Section 12.1 state our entire liability, and your exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.  


12.2. Disclosure of Customer Data. We shall, at our own expense and subject to the limitations set forth in this Section 12, defend you from and against any Claims that arise out of or result directly from our gross negligence or willful misconduct in preventing unauthorized access to your confidential Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold you harmless from and against liability for any Losses to the extent based upon such Claims. 

When we are at fault but such fault does not rise to the level of gross negligence or willful misconduct, we shall, at our own expense and subject to the limitations set forth in this Section 12 and the amount of liability set forth in Section 11.2 applicable in the event of a breach of Section 9, defend you from and against any Claims, and shall hold you harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to our breach of Section 9 of this Agreement. Provided that we comply with this Section 12.2, you shall be entitled as your sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.  

12.3. Customer’s Indemnity. You shall, at your own expense and subject to the limitations set forth in this Section 12, defend us from and against any and all Claims (i) alleging that your Data or any trademarks or service marks other than our Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of your breach of Section 7.5 or 9 above and shall hold us harmless from and against liability for any Losses to the extent based upon such Claims.  

12.4 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 12, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 12 are expressly conditioned upon the indemnified party’s compliance with this Section 12.4 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 12 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 12 shall survive termination of this Agreement for one year.  


13. Dispute Resolution.

Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute. If the dispute cannot be resolved, the dispute resolution procedures sent forth in Section 14 of this Agreement shall apply.


14. General Provisions.

This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except that we may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although we reserve the right to name you as a user of the Service. This Agreement, including all exhibits and/or Order Forms, shall constitute the entire understanding between you and us and is intended to be the final and entire expression of the The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by you in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any our failure to object to such terms, provisions, or conditions. The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form. This Agreement shall be governed in accordance with the laws of the State of New York, United States. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be resolved by binding arbitration before the ICC International Court of Arbitration.  If you are located in Europe, the place of arbitration shall be Paris.  If you are located in the Americas, the place of arbitration shall be New York City and if you are located in Asia, Australia or New Zealand, the place of arbitration shall be Singapore. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. You shall compensate us (including reimbursement of costs) for responding to any request from a third party for records relating to you or a User’s use of the Service. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving our employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. Sections 1, 5.2, 5.3, 5.4, 6, 8.4, 9, 10.3, 11, 12, 13 and 14 shall survive the termination or expiration of this Agreement. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.

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