Master Subscription Agreement

THE TERMS AND CONDITIONS OF THIS MASTER SUBSCRIPTION AGREEMENT, TOGETHER WITH ANY DOCUMENTS EXPRESSLY INCORPORATED BY REFERENCE HEREIN, (COLLECTIVELY, “TERMS”) GOVERN YOUR SUBSCRIPTIONS TO ACCESS AND USE OUR SERVICE, AS FURTHER DEFINED BELOW, PURSUANT TO ONE OR MORE ORDER FORMS.

IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.

You may not access the Service if You are Our direct competitor, except with Our prior written consent.  In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

These terms were last updated on September 8, 2023.  These Terms are effective between You and Us as of the date You execute an Order Form referencing them (“Effective Date”).

1.  DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Documentation” means Our online help and training materials for the Service as updated from time to time.

“Malicious Code” means code, files, worms, scripts, agents, disabling devices, viruses, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data.

“Order Form” means the ordering documents for purchases of subscriptions to the Service hereunder, including addenda thereto, that are entered into between You and Us from time to time.  By entering an Order Form hereunder, an Affiliate agrees to be bound by these Terms as if it were an original party hereto.  Order Forms shall be deemed incorporated herein by reference.

“Privacy Policy” means Our privacy policy found at https://www.mypartnerfleet.com/privacy-policy as updated from time to time.

“Service”, for purposes of these Terms, means access to and use of https://www.partnerfleet.io/ and/or https://partnerfleet.app, including any subdomains, content, functionality, and services offered on or through https://www.partnerfleet.io/ and/or https://partnerfleet.app, that are ordered by You or Your Affiliate under an Order Form, including any associated offline components but excluding Third Party Materials and Your Content.

“Subscription Term” means the period from the start date to the end date specified in each Order Form for each subscription purchased thereunder.  Each renewal of a subscription, whether automatic or in writing, shall constitute a new Subscription Term.

“Third Party Materials” means products, services, information, data, content, and other materials made available by or on behalf of third parties, including via links.

“Users” means individuals who are authorized by You to use the Service, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords by You.  Users may include but are not limited to Your employees, consultants, contractors, and agents, or third parties with which You transact business.

“We”, “Us”, or “Our” means Partner Fleet Inc. and Affiliates of Partner Fleet Inc.

“You” or “Your” means the company or other legal entity for which You are accepting these Terms, and Affiliates of that company or entity.  

“Your Content” means information, data, content, or other materials submitted, posted, or linked by, for, or through You to the Service, or collected and processed by, for, or through You using the Service, including any Third-Party Materials so submitted, posted, linked, collected, or processed by, for, or through You using the Service, but excluding the Service.

2.  SERVICE

2.1. Provision of Service.  We shall make the Service available to You pursuant to these Terms and the relevant Order Form(s) during each Subscription Term, subject to Your timely payment of all applicable fees.  You agree that Your subscription(s) hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2. User Subscriptions.  If subscriptions are specified in the applicable Order Form as User subscriptions, (a) the Service may be accessed by no more than the specified number of Users, (b) additional User subscriptions may be purchased during the Subscription Term by signing an additional Order Form and paying the additional fees for such additional User subscriptions, prorated for the portion of that Subscription Term remaining at the time the Subscriptions are added, and (c) the added User subscriptions shall terminate on the same date as the underlying subscriptions.

2.3 Usage Limits. Our Service is subject to usage limits, including, for example, any quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Service promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 4.2 (Invoicing and Payment).

3.  USE OF THE SERVICE

3.1 Our Responsibilities.  In addition to providing the Service as described in Section 2.1, We shall provide You with standard support, in accordance with Our then-current support policy for the Service (the current version of which is attached hereto as Exhibit A), during the applicable Subscription Term and at no additional charge.  Additionally, We shall maintain reasonable administrative, physical, technical, organizational, and other security measures and procedures, and in no event less than commonly accepted industry standards in light of the services being provided hereunder and the sensitivity of the data that We have access to pursuant to these Terms, intended to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any of Your Content residing in the Service.  We shall not be responsible or liable for any deletion, correction, damage, destruction, or loss of Your Content that does not arise from a breach by Us of Our obligations under these Terms.

3.2. Your Responsibilities.  You shall (a) be responsible for Users’ compliance with these Terms, the Documentation, and the Order Forms, (b) be solely responsible for the accuracy, quality, integrity, and legality of Your Content and of the means by which You acquired Your Content and Your use with, and creation through, the Service of Your Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, (d) be solely responsible for obtaining, maintaining, and paying for all hardware and all telecommunications, internet, or other products and services needed to access and use the Service, and (e) use the Service only in accordance with these Terms, the Privacy Policy, the Documentation, the Order Forms, and applicable laws and government regulations.  

3.3 Usage Restrictions.  You will not, and will ensure Your Users do not, (a) make the Service available to, or use the Service for the benefit of, anyone other than You and Your Users, (b) use the Service to harvest or collect information about other users or visitors of the Service, (c) sell, resell, license, sublicense, rent, lease, loan, or timeshare any of the Service, or include any of the Service in a service bureau or outsourcing offering, (d) use the Service to store or transmit infringing, libelous, fraudulent, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use the Service to store or transmit Malicious Code, (f) interfere with or disrupt the operation, integrity, or performance of the Service or third-party information, data, content, or other materials available in or through the Service, (g) attempt to gain unauthorized access to the Service or the servers, systems, or networks used to make the Service available, including by hacking or defacing any portion of the Service, or violate any requirement, procedure, or policy of such servers, systems, or networks, (h) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (i) reproduce, modify, adapt, translate, create derivative works of, distribute, or otherwise exploit the Service or any part, feature, function, or user interface of the Service, except as expressly authorized under these Terms, the Documentation, or by Our separate express, written consent, (j) frame or mirror any portion of the Service or otherwise incorporate any portion of the Service into any product or service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as expressly authorized under these Terms, the Documentation, or by Our separate express, written consent, (k) access or use the Service in order to build a competitive product or service or for purposes of benchmarking or otherwise monitoring the Service availability, performance, or functionality, (l) systematically download and store any information, data, content, or other materials available in or through the Service, except Your Content and as required in order to use the Service as expressly authorized in these Terms, the Documentation, or by Our separate express, written consent, (m) use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape”, “data mine”, or otherwise gather any information, data, content, or other materials available in or through the Service, or reproduce or circumvent the navigational structure or presentation of the Service, without Our express prior written consent, (n) remove or modify any markings or notices contained in the Service, including any markings or notices of Our or any other party’s proprietary rights, (o) use the Service to falsely state or imply an association with Us or another person, or (p) disassemble, reverse engineer, or decompile the Service or any portion of the Service or use the Service to determine whether there is infringement of a patent (except where such restriction is expressly prohibited by applicable law).  If You or Your User(s) breach any of the foregoing restrictions, We may suspend Your and/or Your User(s)’ access to the Service upon notice to You.

4.  FEES AND PAYMENT FOR SERVICE

4.1. Fees.  You shall pay all fees specified in all Order Forms hereunder.  Except as otherwise specified herein or in an Order Form, (a) fees are based on subscriptions purchased and not actual usage, (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant Subscription Term.  Subscription fees are based on annual periods that begin on the Subscription Start Date (as set forth in the applicable Order Form) and each one (1) year anniversary thereof; fees for subscriptions added in the middle of a yearly period will be prorated based on the month in which they are added and thereafter will be charged for the full yearly periods remaining in the Subscription Term.

4.2. Invoicing and Payment.  Fees will be invoiced in advance and/or as otherwise stated in the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net thirty (30) days from your receipt of the applicable invoice.  You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

4.3. Overdue Charges.  Subject to Section 4.5 (Payment Disputes), if any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, and at Our discretion, (a) those amounts may accrue interest at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such amount was due until the date paid and/or (b) We may condition future subscriptions on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Service is thirty (30) or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under these Terms and/or such other agreements so that all such obligations become immediately due and payable, and suspend the Service and/or Our other services to You until such amounts are paid in full.  We will give You at least ten (10) days’ prior notice that Your account is overdue, in accordance with Section 11.1 (Notices), before suspending the Service and/or Our other services to You.

4.5. Payment Disputes.  We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable fees are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

4.6. Taxes.  Unless otherwise stated, Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”).  You are responsible for paying all Taxes associated with Your purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, 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.  For clarity, We are solely responsible for taxes assessable against Us based on Our gross revenues, net income, property, and employees.

5. PROPRIETARY RIGHTS

5.1. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title, and interest in and to the Service, including all of Our/their related intellectual property rights.  No rights are granted to You hereunder other than as expressly set forth herein.  You agree not to, and not to permit Your Affiliate(s) or User(s), to remove any proprietary notices on, in, or related to the Service.

5.2. Ownership of Your Content.  As between Us and You, You exclusively own all rights, title, and interest in and to all of Your Content.  No rights are granted to Us hereunder other than as expressly set forth herein.  We agree not to, and not to permit Our Affiliate(s), to remove any proprietary notices on, in, or related to Your Content.

5.3. Suggestions.  We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by You, including Your Affiliates and/or Users, relating to the functionality and/or operation of the Service.  For clarity, the foregoing does not include any of Your Content or Your Confidential Information.

6. CONFIDENTIALITY

6.1. Definition of Confidential Information.  As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether electronically, orally, or in writing, that is conspicuously marked as “Confidential” or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure.  In addition, Your Confidential Information shall include Your Content to the extent You have not made, or authorized Us to make through the Service, such content publicly available.  Our Confidential Information shall include those features and functions of the Service that We have not made publicly available (including, without limitation, the software code that operates the Service) and the Documentation.  Confidential Information of each party shall include the terms and conditions of these Terms and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party (provided that, either party may disclose the terms and conditions of these Terms and any Order Forms to potential investors and acquirers, in connection with bona fide financing or acquisition due diligence).  Confidential Information shall not include any information that the Receiving Party can prove though competent evidence (i) is or becomes generally known to the public without breach of any obligation of confidentiality owed to the Disclosing Party by the Receiving Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of confidentiality owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation of confidentiality owed to the Disclosing Party, (iv) the Disclosing Party has authorized the Receiving Party to disclose (including, without limitation, through the Service), and/or (v) was independently developed by the Receiving Party without reliance upon or reference to the Disclosing Party’s Confidential Information.

6.2. Protection of Confidential Information. Except as otherwise permitted hereunder or in writing by the Disclosing Party, the Receiving Party (a) shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) to protect the Confidential Information of the Disclosing Party, (b) shall not use any Confidential Information of the Disclosing Party in the Receiving Party’s possession for any purpose outside the scope of these Terms, and (c) shall only disclose Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  Neither party will disclose the terms of these Terms or any Order Form to any third party other than as permitted in Section 6.1, or to its Affiliates, legal counsel, and accountants, without the other party’s prior written consent, provided that a party that makes any such disclosure as permitted in Section 6.1 and/or to its Affiliate, legal counsel, or accountants will remain responsible for such third party’s compliance with this Section 6.2.  

6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. WARRANTIES AND DISCLAIMERS

7.1. Our Warranties.  We warrant that (a) the Service shall perform materially in accordance with the Documentation and (b) subject to Section 7.4 (Third-Party Materials), the functionality of the Service will not be materially decreased during a Subscription Term (as defined in the applicable Order Form).  

7.2. Mutual Warranties.  Each party represents and warrants that (a) it has the legal power to enter into these Terms, (b)  no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of these Terms; (c) the execution, delivery, and performance of these Terms does not violate the terms or conditions of any other legally binding agreement the warranting party has, and (d) it will not transmit to the other party any Malicious Code (except for Malicious Code first transmitted to the warranting party by the other party).

7.3. Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY AND THEIR LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY MATERIAL PROVIDERS.  

7.4. Third Party Materials.  Your use of Third Party Materials is governed entirely by the terms of Your agreement with the relevant third party.  Nothing in these Terms creates any rights or obligations on Our part with respect to such Third Party Materials, nor should these Terms be construed as creating any rights or obligations on the part of any third party providing Third Party Materials with respect to Our Service.

8. MUTUAL INDEMNIFICATION

8.1. Indemnification by Us. We will defend You, and Your Affiliates and Your and Your Affiliates’ officers, directors, employees, successors and permitted assigns (collectively and individually, “Your Indemnitees”) from and against any claim, demand, suit, or proceeding made or brought against You or Your Indemnitees by a third party alleging that the use of the Service in accordance with these Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify and hold harmless You and Your Indemnitees from any damages, reasonable attorney fees, expenses, and costs finally awarded against You and/or Your Indemnitees as a result of, or for amounts to be paid by You and/or Your Indemnitees under a court-approved settlement of, a Claim Against You or Your Indemnitees, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You and Your Indemnitees of all liability), and (c) give Us all reasonable assistance, at Our expense.  If We receive information about an infringement or misappropriation claim related to the Service, We may in Our discretion and at no cost to You or Your Affiliates either (i) modify the Service so that it is no longer claimed to infringe or misappropriate, without breaching Our warranties under Section 7.1 (Our Warranties), (ii) obtain a license for Your and Your applicable Affiliates’ continued use of the Service in accordance with these Terms and applicable Order Forms, or (iii) terminate Your and Your Affiliates’ subscriptions for the Service, or impacted portion of the Service, upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.  The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from (A) the use or combination of the Service, or any part of the Service, with software, hardware, data, or processes not provided by Us, if the Service, or use of the Service, would not infringe or be misappropriating without such combination, (B) Service for which there is no charge or fees; and/or (C) Third-Party Materials, Your Content, or Your breach of these Terms, the Documentation, or applicable Order Forms.

8.2. Indemnification by You. You will defend Us, and Our Affiliates and Our and Our Affiliates’ officers, directors, employees, successors and permitted assigns (collectively and individually, “Our Indemnitees”) from and against any claim, demand, suit, or proceeding made or brought against Us or Our Indemnitees by a third party alleging that Your Content, or Your use of the Service in breach of these Terms, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify and hold harmless Us and Our Indemnitees from any damages, reasonable attorney fees, expenses, and costs finally awarded against Us and/or Our Indemnitees as a result of, or for any amounts to be paid by Us and/or Our Indemnitees under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us and Our Indemnitees of all liability), and (c) give You all reasonable assistance, at Your expense.

8.3. Exclusive Remedy.  This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.

9. LIMITATION OF LIABILITY

9.1. Limitation of Liability.  EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY,  TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THESE TERMS AND ALL ORDER FORMS HEREUNDER, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.  THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICE).

9.2. Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER FORM HEREUNDER FOR ANY LOST PROFITS, REVENUES, OR GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING EXCLUSION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.  FOR CLARITY, THE FOREGOING EXCLUSION DOES NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD-PARTY CLAIMS UNDER SECTION 8 (MUTUAL INDEMNIFICATION).

10. TERM AND TERMINATION

10.1. Term of Agreement.  These Terms commence on the Effective Date and continue until all subscriptions granted in accordance with these Terms have expired or been terminated.

10.2. Term of Subscriptions. The initial Subscription Term of each subscription to the Service shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, subscriptions to the Service will automatically renew for additional periods equal to the expiring Subscription Term, unless You or We provides the other with written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term.  Upon the expiration of each Subscription Term, We may increase the fees up to our then-current list price; provided that We notify You at least ninety (90) days before the end of the expiring Subscription Term.  Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal.  Notwithstanding anything to the contrary, any renewal in which subscription volume for any Service has decreased from the prior Subscription Term will result in re-pricing at renewal without regard to the prior Subscription Term’s per-unit pricing.

10.3. Termination for Cause.  Either You or We may terminate these Terms and all Order Forms, for cause, as to any or all of the Service: (a) upon thirty (30) days’ notice to the other party of a material breach of these Terms and/or an Order Form if such breach remains uncured at the expiration of such notice period or (b) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation, or assignment for the benefit of creditors.

10.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the Subscription Term of all subscriptions terminated upon the effective date of termination.  Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the then-current Subscription Term of each Order Form terminated.  In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.5. Surviving Provisions. Sections 4 (Fees and Payment for Service), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10 (Term and Termination), and 11 (General Provisions) shall survive any termination or expiration of these Terms.

11. GENERAL PROVISIONS

11.1. Notices.  Except as otherwise specified in these Terms, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon:  (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnification claim).  Notices to You shall be addressed to the system administrator designated by You for Your relevant Service account, and in the case of billing-related notices, to the relevant billing contact designated by You.

11.2. Governing Law and Jurisdiction; Waiver of Jury Trial.  These Terms shall be governed exclusively by the substantive and procedural laws of the State of Delaware, without regard to its conflicts of laws rules.  The state and federal courts located in the City of Wilmington, Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms.  Each party hereby consents to the exclusive jurisdiction and venue of such courts.  Neither the Uniform Computer Information Transactions Act, the Uniform Commercial Code, nor the United Nations Convention on the International Sale of Goods apply to these Terms or to orders placed under it.  Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.

11.3. Export Compliance.  Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service.  Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports and (b) You and Your Affiliates shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction.

11.4. Relationship of the Parties.  The parties are independent contractors.  These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.5. No Third-Party Beneficiaries.  There are no third-party beneficiaries to these Terms.

11.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.7. Severability.  If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

11.8. Assignment.  Neither party may assign any of its rights or obligations under these Terms or any Order Form hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).  Notwithstanding the foregoing, either party may assign these Terms and all Order Forms hereunder, in their entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of these Terms upon written notice to the assigning party.  Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

11.9. Entire Agreement and Order of Precedence. These Terms and the Order Forms hereunder are the entire agreement between You and Us regarding Your use of the Service and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning their subject matter.  No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.  The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable Order Form, (b) these Terms, and (c) the Documentation.

11.10. Customer Attribution. You agree that We may use and display Your name and logo: (a) in connection with providing the Service to You and (b) with Your prior written approval, not to be unreasonably withheld or delayed, on Our customer list and in Our other marketing materials.