Subscription services agreement
This subscription services agreement (the “Agreement”) is made between (1) the named entity or individual entering into this Agreement through registration (“Customer”, “you”, “your”), and (2) Fitii Ltd. trading as My PT Hub (“Supplier”, “us”, “our”), a limited company registered in England and Wales with company number 09374110 and having its registered office at Highfield Court Tollgate, Chandler’s Ford, Eastleigh, Hampshire, United Kingdom, SO53 3TY. This Agreement is effective between Customer and Supplier as of the date of Customer’s acceptance of this Agreement (“Effective Date”) through the click-button contract acceptance mechanism (the “Click to Accept Button”) on the Supplier’s website at https://www.mypthub.net (the “Site”) or through the My PT Hub Android and iOS mobile applications (the “Apps”).
Supplier will make available to Customer (on a non-exclusive basis) the Subscription Services indicated in the Order Form. Customer agrees that its purchase of a subscription to the Subscription Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Supplier regarding future functionality or features.
Trial Period
Customer may be granted the ability to use the Subscription Services for free (a “Free Trial”). When Customer accepts the Free Trial by clicking the Free Trial click-button contract acceptance mechanism (the “Free Trial Click to Accept Button”), Customer shall receive a welcome email, which shall constitute proof of purchase and Free Trial order form (the “Free Trial Order Form”). The Free Trial Order Form shall set out the duration of the Customer’s Free Trial (the “Trial Period”) and any other details pertinent to the Free Trial. Upon clicking the Free Trial Click to Accept Button, Customer agrees that the terms of this Agreement, as applicable, shall apply to and govern the Free Trial and are legally binding on the Customer for the Trial Period. The Free Trial shall commence when the Customer clicks the Free Trial Click to Accept Button and continues until the Trial Period is over.
In the event that the Customer purchases a subscription for the Subscription Services during the Free Trial, the Effective Date for the paid subscription shall be the date on which the Customer clicks the Click to Accept Button to purchase the paid subscription for Subscription Services (the “Paid Subscription Effective Date”). This Agreement shall continue to govern the paid subscription for Subscription Services from the Paid Subscription Effective Date onwards.
The Free Trial shall be available to Customer until the earlier of:
(a)the last day of the Trial Period;
(b)the termination of the Free Trial by Supplier in its sole discretion; or (c)the Paid Subscription Effective Date, at which time the remainder of the Free Trial is forfeited by Customer in favour of a paid subscription.
In the event that Customer does not purchase a subscription for the Subscription Services during the Free Trial and, instead, does so after the Free Trial has expired, the terms of this Agreement shall govern the purchase of the Subscription Services as of the Effective Date of purchase, in accordance herewith.
In the event that Customer does not purchase a subscription for the Subscription Services during the Free Trial, and does not wish to make any such purchase, Supplier may, in its sole discretion, enable Customer to use a limited, free version of the Subscription Services for no charge and for a length of time set by Supplier, in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary in this Agreement, a Free Trial is provided “AS IS.” SUPPLIER MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL. SUPPLIER SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL IS US$50.00 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 18, CUSTOMER SHALL NOT USE THE FREE TRIAL IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL. ANY DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S FREE TRIAL ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL.
For certainty, Customer acknowledges and agrees that if, in the sole discretion of the Supplier, it is determined to be a direct competitor of Supplier, Customer shall not purchase or access any Subscription Services, unless Customer has Supplier’s prior written consent. Customer further acknowledges and agrees that it shall not purchase or access any Subscription Services specifically for purposes of monitoring availability, performance, functionality, or competitive/benchmarking purposes.
Where Customer has opted for a Monthly Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each month beginning with the date the Subscription Services were first purchased.
Where Customer has opted for a Monthly Annual Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each month beginning with the date the Subscription Services were first purchased.
Where Customer has opted for an Annual Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each year beginning with the date the Subscription Services were first purchased.
In the event that this Agreement automatically renews and the parties hereto enter into a Renewal Term (as defined below), all Subscription Services purchased under applicable Order Forms shall automatically renew at the Supplier’s then standard rate applicable at the time of automatic renewal (the “Renewal Fees”). The Customer acknowledges and agrees that Renewal Fees may be different from the original fees paid during the Initial Term (as defined below). Renewal Fees will be subject to the same payments terms in this Section 8 and shall be paid using the same credit or debit card or other payment method as set out in the relevant Order Form unless Customer provides a new credit or debit card or other payment method to Customer.
The Supplier may, at its sole discretion and at any time, vary the prices for the Subscription Services. Any such variation shall take effect immediately upon notice to the Customer. Continued use of the Subscription Services after such notice shall constitute acceptance of the varied price.
Any and all invoice disputes must be initiated by Customer in good faith and in writing to Customer’s own bank by the due date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer and will be due and payable. If Customer initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. Once the dispute is brought to the Customer’s own bank, Supplier will be made aware and will submit its own evidence in the matter. Supplier and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute. With regard to any undisputed invoiced amount that is not paid when due, Supplier reserves the right to charge, and Customer agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to one percent (1%) per month. If it is determined that Supplier properly charged any amount disputed and withheld by Customer, the late fee will be assessed and paid on the disputed, withheld amount.
Except for a good faith dispute as outlined above, should Customer fail to make any payment hereunder when due, Supplier reserves the right to suspend or interrupt the provision of Customer’s access to the Subscription Services (and all related services provided hereunder) until such non-payment is remedied, provided that Supplier provides Customer with at least three (3) days advance notice (including via email notification or other form of notification via the Subscription Services) that fees remain outstanding. In such event, Supplier shall not be precluded from exercising any additional remedies that might be available to it under the terms of this Agreement or otherwise.
Customer may connect its payment processing account to Supplier’s to facilitate transactions with its Clients (as defined below). Customer acknowledges and agrees that its payment processing account is owned and controlled solely by Customer, and that Supplier has no responsibility for the operation of Customer’s payment processing account or for any payments processed through same.
In consideration for Customer’s use of the Subscription Services, Supplier shall charge an application fee on each transaction processed by Supplier (the “Transaction Fee”). The Transaction Fee shall be set out in writing for Customer. Customer authorizes Supplier, through its payment processor, to deduct the Transaction Fee automatically from the transaction proceeds prior to remitting funds to the Customer. Transaction Fees are non-refundable and may be increased at the Supplier’s discretion at a maximum of one time per calendar year during the term of the Agreement.
If this Agreement expires or terminates, for whatever reason, the Clients (as defined below) will lose access the Site and Apps through Customer’s account and subscription for the Subscription Services. Customer acknowledges and agrees that because it, and not Supplier, controls its own payment processing account, any subscriptions or recurring payments between Customer and its Clients (as defined below) will continue until Customer takes action to cancel them or disconnect its payment processing account from Supplier’s account. Customer shall promptly disconnect is payment processing account from Supplier’s account upon expiration or termination of this Agreement. Customer acknowledges and agrees that it is solely responsible for (i) managing or cancelling any such subscriptions with its Clients (as defined below), and (ii) any resulting charges, refunds, disputes, or liabilities. Supplier will not be liable for any amounts charged to the Clients (as defined below) after the expiration or termination of this Agreement and the Subscription Services.
(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 14(b).
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
(b) Customer grants to Supplier a royalty-free, non-transferable, non-exclusive license for the term of this Agreement to use Customer Data to the extent necessary to perform the Subscription Services. Notwithstanding anything to the contrary, Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Supplier will be free (during and after the term hereof) to (i) analyze and use such information and data to improve and enhance the Subscription Services and for other development, diagnostic and corrective purposes in connection with the Subscription Services and other Supplier offerings (examples of such uses include optimizing resources and support, research and development, verification of security and data integrity, internal demand planning, industry developments and anonymous benchmarking with other customers), and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
(c) Where Customer is subject to EU data protection laws, the attached Data Processor Addendum shall apply to the extent that Supplier processes personal data on Customer’s behalf.
Customer shall ensure that it maintains and enforces appropriate written terms and conditions with its own clients who access the Site and Apps through Customer’s account and subscription for the Subscription Services (“Clients”) Such terms and conditions must:
(b) Customer’s Indemnity. Customer agrees to indemnify, hold harmless and defend Supplier, its affiliates and any of their respective officers, directors, employees, agents, successors and permitted assigns from and against all costs, damages and expenses arising out of or on account of any violation of Section 2 (Restrictions) or Section 15(a) (Customer Data) by Customer. Additionally, Customer acknowledges and agrees that Supplier relies on Customer to obtain valid Client consents as detailed in Section 15 and, therefore, Customer shall indemnify and hold harmless Supplier from any claims, losses, damages, or liabilities arising out of or relating to Customer’s failure to obtain such consents or to maintain appropriate Client terms and conditions as set out in Section 15.
(b) Service Level Guarantee. If the Subscription Services are unavailable to Customer for more than five percent (5%), or such other figure specified in the Order Form, of the scheduled uptime for any month (exclusive of scheduled maintenance time or any downtime attributable to third parties or Customer, or for which Supplier is not responsible (including, but not limited to interruptions and delays inherent in Internet communications), then Supplier will credit Customer with a proportionate share of the Service fees for such month on Customer’s next required payment to Supplier (for example, if the Subscription Services are unavailable for six percent (6%) of the month, then the credit will be equal to six percent (6%) of the fees in respect of that month). In order to receive downtime credit, Customer must notify Supplier in writing within forty eight (48) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service fees in any one (1) calendar month in any event. Supplier will only apply a credit to the month in which the incident occurred. Supplier’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Supplier to provide adequate service levels under this Agreement.
(c) Internet. Supplier will use commercially reasonable efforts to ensure that the web pages generated with the Subscription Services will be served (i.e. delivered from Supplier’s internal network or that of its Internet service provider) promptly regardless of the level of traffic to Supplier’s servers, subject to outages, communication and data flow failures, interruptions and delays inherent in Internet communications. Customer acknowledges that problems with the Internet, equipment, software and network failures, impairments or congestion, or the configuration of Customer’s computer systems, may prevent, interrupt or delay Customer’s access to the Subscription Services or data stored within the Subscription Services. Supplier is not liable for any delays, interruptions, suspensions or unavailability of the Subscription Services or the data stored within the Subscription Services, attributable to problems with the Internet or the configuration of Customer’s computer systems.
(d) System Requirements. Customer acknowledges that the Subscription Services are intended to perform with, and Supplier provides the Subscription Services based upon, the system requirements specified in the Order Form or additional documentation made available by Supplier to Customer, as those may be updated by Supplier from time to time. Supplier has no liability for failure of the Subscription Services based upon Customer’s failure to comply with such system requirements.
(e) Products. Supplier represents that it has the authority of each producer and/or manufacturer of Products which are subject to this Agreement to sell the same to Customer. Customer acknowledges that Supplier makes no warranties, conditions, representations or guarantees, express or implied, concerning Products. Supplier in so far as it is possible hereby assigns to Customer the producer’s or manufacturer’s warranty(s), if any, applicable to the Products. To the extent permitted by law, Supplier makes no representations regarding the validity or enforceability of any such producer’s or manufacturer’s warranty and Customer understands that its sole remedy for any breach of warranty is such as may exist against the producer or manufacturer under the producer’s or manufacturer’s warranty.
(f) Warranty Limitation. The conditions and warranties set forth in this Agreement do not apply to the extent that non-compliance is caused by, or has resulted from, (i) Customer’s use of the Subscription Services other than as authorized in this Agreement; (ii) use of the Subscription Services in combination with other software, data or products that are defective, incompatible with, or not authorized in writing by Supplier for use with the Subscription Services; (iii) any malfunction of Customer’s hardware, computers, computer-related equipment or network connections; and (iv) any modification of the Subscription Services not performed by Supplier or otherwise authorized by Supplier in writing.
(g) Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 17 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE USE OF REASONABLE SKILL AND CARE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR SERVICES PROVIDED IN CONNECTION WITH THE SUBSCRIPTION SERVICES. SUPPLIER’S LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN SUPPLIER OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE.
Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. This may include any consumer law which contains guarantees that protect the purchasers of goods and services in certain circumstances. If any guarantee, representation, warranty, condition or other term is implied or imposed concerning this Agreement under any consumer law or any other applicable law and cannot be excluded (a “Non-Excludable Provision”), and Supplier is able to limit Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of Supplier for breach of the Non-Excludable Provision is limited to one or more of the following, at Supplier’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or (b) in the case of services, the supplying of the Subscription Services again, or the payment of the cost of having the Subscription Services supplied again. Customer may make such a guarantee claim by contacting Supplier at support@mypthub.net. The parties agree that it is Customer’s responsibility to determine whether the Subscription Services are suitable for Customer’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever.
TO THE FULL EXTENT PERMITTED BY LAW, SUPPLIER’S ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, OR ANY RELATED ITEMS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO SUPPLIER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM; AND
NEITHER PARTY WILL BE LIABLE FOR: (I) ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR IN ANY WAY RELATED TO THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, OR ANY RELATED ITEMS; OR
(II) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA, OR DATA USE (INCLUDING AS A RESULT OF A VIRUS), BUSINESS INTERRUPTION, FAILURE TO REALIZE AN EXPECTED SAVING, CORRUPTION OF DATA, OR CLAIMS AGAINST THEM BY ANY THIRD PARTY,
EVEN IF THE PARTIES ARE ADVISED, OR MAY REASONABLY SUPPOSED TO HAVE BEEN AWARE, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
SUCH LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, WHETHER ARISING BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE AND WILL APPLY TO ALL ORDER FORMS, SCHEDULES, ADDENDA, AGREEMENTS AND ATTACHMENTS RELATED TO THIS AGREEMENT.
THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
(c) Termination by Customer. Customer has the right to terminate this Agreement if Supplier is in default of any term or condition herein, and fails to cure such default within thirty (30) days after receipt of written notice of such default or if Supplier becomes insolvent or any proceedings are to be commenced by or against Supplier under any bankruptcy, insolvency or similar laws.
(d )Termination by Supplier. Subject to Section 19(e) (Failure to Pay Fees), Supplier has the right to terminate this Agreement if Customer is in default of any term or condition of this Agreement, and fails to cure such default within thirty (30) days after receipt of written notice of such default. Without limitation, it will be deemed a Customer default under this Agreement if Customer fails to pay any amount when due hereunder. Supplier may terminate this Agreement immediately if: (i) Customer breaches Section 2 (Restrictions) ) or Section 15(a) (Customer Data); (ii) Customer becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Customer, Customer assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Customer under any bankruptcy, insolvency or similar laws; or (iii) if Customer develops software or services that is competitive with the Subscription Services or Customer is acquired by or acquires an interest in a competitor of Supplier; or (iv) if, in the Supplier’s sole discretion, Customer is deemed to be excessively aggressive in correspondence with Supplier and its employees.
(e) Failure to Pay Fees. In the event that Customer fails to pay the applicable fees when due, Supplier reserves the right to elect to take one of the following courses of action (without limiting Supplier’s other available remedies): (i) notify Customer that this Agreement will immediately expire (or has expired) effective as of the expiration of the then-current period; or (ii) allow this Agreement to renew for another renewal period, in which event, the applicable fees for such renewal period will continue to be payable; provided, however, that if Supplier does not affirmatively notify Customer that alternative (i) or (ii) has been selected, then alternative (ii) will apply.
(f) Early Termination. Customer understands that Supplier has undertaken significant implementation and investment costs which are intended to be amortized over any initial term indicated on the Order Form (“Initial Term”). In consideration of the costs and the pricing structure acknowledged and accepted in the Order Form, Customer agrees to pay liquidated damages if Customer elects early termination during such Initial Term (other than pursuant to Section 19(c)). The liquidated damages for such early termination will be the value of the fees for the remainder of the Initial Term, or in the event a Renewal Term has been entered into, the value of the fees for the remainder of the Renewal Term shall be payable, along with any outstanding fees for additional modules and services ordered but not yet paid for by Customer since the date of this Agreement. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. Customer acknowledges that the actual damages likely to result from a breach of the Initial Term or the Renewal Term, as applicable, by Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. For certainty and clarity, in the event that Customer elects early termination during the term of the Agreement, whether it be during the Initial Term or any Renewal Term, Supplier shall be under no obligation to refund any payments made by the Customer to Supplier.
(g) Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Supplier will make the Customer Data available to Customer for export or download. After such thirty (30) day period, Customer acknowledges that Supplier will have no obligation to maintain or provide Customer Data. Where Customer is subject to EU data protection laws and a Data Processor Addendum applies, the Data Processor Addendum will govern with respect to the data portability and deletion of Customer Data that is Personal Data (as such term is defined in the Data Processor Addendum).
(h) Surviving Provisions. Following the termination of this Agreement, the Sections titled “Payment Terms,” “Taxes,” “Ownership,” Customer Input,” “Confidentiality,” “Data,” “Indemnification,” “Warranties & Warranty Disclaimer,” “Limitation of Liability,” “Term and Termination,” “Assignment,” “Dispute Resolution,” “Governing Law” and “General Provisions” will continue in full force and effect in accordance with their terms.
1. Subscription Services
Customer shall select which tier of Supplier’s subscription services, including any additional services, any one-off or recurring add-on features and/or add on services or modules (the “Add Ons”), as applicable, it wishes to purchase from the Site or Apps (collectively the “Subscription Services”) and shall proceed to checkout and purchase such Subscription Services. The Customer’s receipt of purchase showing the Subscription Services it has purchased shall act as an order form for the purposes of this Agreement (the “Initial Order Form”). For clarity, Customer may, at any time during the term of this Agreement purchase more Add Ons and any such additional Add Ons purchased shall (i) be subject to this Agreement, (ii) be treated as part of the Subscription Services, and (iii) shall be documented on additional order forms (the “Additional Order Forms” and together with the Initial Order Form, collectively referred to as an “Order Form” or the “Order Forms” for purposes of this Agreement).Supplier will make available to Customer (on a non-exclusive basis) the Subscription Services indicated in the Order Form. Customer agrees that its purchase of a subscription to the Subscription Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Supplier regarding future functionality or features.
Trial Period
Customer may be granted the ability to use the Subscription Services for free (a “Free Trial”). When Customer accepts the Free Trial by clicking the Free Trial click-button contract acceptance mechanism (the “Free Trial Click to Accept Button”), Customer shall receive a welcome email, which shall constitute proof of purchase and Free Trial order form (the “Free Trial Order Form”). The Free Trial Order Form shall set out the duration of the Customer’s Free Trial (the “Trial Period”) and any other details pertinent to the Free Trial. Upon clicking the Free Trial Click to Accept Button, Customer agrees that the terms of this Agreement, as applicable, shall apply to and govern the Free Trial and are legally binding on the Customer for the Trial Period. The Free Trial shall commence when the Customer clicks the Free Trial Click to Accept Button and continues until the Trial Period is over.
In the event that the Customer purchases a subscription for the Subscription Services during the Free Trial, the Effective Date for the paid subscription shall be the date on which the Customer clicks the Click to Accept Button to purchase the paid subscription for Subscription Services (the “Paid Subscription Effective Date”). This Agreement shall continue to govern the paid subscription for Subscription Services from the Paid Subscription Effective Date onwards.
The Free Trial shall be available to Customer until the earlier of:
(a)the last day of the Trial Period;
(b)the termination of the Free Trial by Supplier in its sole discretion; or (c)the Paid Subscription Effective Date, at which time the remainder of the Free Trial is forfeited by Customer in favour of a paid subscription.
In the event that Customer does not purchase a subscription for the Subscription Services during the Free Trial and, instead, does so after the Free Trial has expired, the terms of this Agreement shall govern the purchase of the Subscription Services as of the Effective Date of purchase, in accordance herewith.
In the event that Customer does not purchase a subscription for the Subscription Services during the Free Trial, and does not wish to make any such purchase, Supplier may, in its sole discretion, enable Customer to use a limited, free version of the Subscription Services for no charge and for a length of time set by Supplier, in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary in this Agreement, a Free Trial is provided “AS IS.” SUPPLIER MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL. SUPPLIER SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL IS US$50.00 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 18, CUSTOMER SHALL NOT USE THE FREE TRIAL IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL. ANY DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S FREE TRIAL ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL.
2. Restrictions
Customer will use the Subscription Services only for its own, internal business purposes. Customer will not: resell, copy, frame or mirror any part or content of the Subscription Services; make the Subscription Services available for timesharing or service bureau purposes; or otherwise provide access to the Subscription Services to any third party, except as expressly agreed in the Order Form. Customer will not, subject to any non-waivable rights under applicable law, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services; interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; attempt to gain unauthorized access to the Subscription Services or its related systems or networks; modify, translate, or create derivative works based on the Subscription Services; or remove any proprietary notices or labels. Customer further agrees to those further restrictions, if any, on Customer’s access to or use of the Subscription Services which are indicated in the Order Form.For certainty, Customer acknowledges and agrees that if, in the sole discretion of the Supplier, it is determined to be a direct competitor of Supplier, Customer shall not purchase or access any Subscription Services, unless Customer has Supplier’s prior written consent. Customer further acknowledges and agrees that it shall not purchase or access any Subscription Services specifically for purposes of monitoring availability, performance, functionality, or competitive/benchmarking purposes.
3. Technical Support
Supplier will provide Customer with reasonable technical support services (“Technical Support”) in accordance with Supplier’s current standard practice. Outside of reasonable, regular office hours, operating in the United Kingdom’s GMT/BST time zone, non-emergency support will be charged to Customer at Supplier’s then-current rates and will be subject to any additional terms and conditions set forth in the Order Form. Customer acknowledges and agrees that Technical Support is intended to address specific problems experienced by Customer relating to the Subscription Services and is not intended to train Customer’s employees or to support third party products (“Other Assistance”). Supplier will advise Customer during a support session if Supplier considers such request to constitute Other Assistance. Following such notice, if Customer wishes for the support session to continue, Customer will pay for such Other Assistance based on Supplier’s then-current rates. Should the problem reported by Customer to Supplier be the result of hardware malfunction (not relating to Supported Hardware where such service is specified on the Order Form) or other causes external to the Subscription Services, Supplier will advise Customer to have the hardware/network repaired. Support resulting from hardware/network problems and/or issues associated with third party products or services will be billed to Customer at Supplier’s then-current hourly rates.4. Interfaces
Interfaces to third party vendor systems may be available, as indicated in the documentation associated with the Subscription Services. To the extent such third party vendor system interfaces are available, Supplier shall install or make available the interfaces as agreed between the parties on the Order Form. Customer shall act as a liaison between Supplier and any third party vendor(s) with which the Subscription Services shall interface. Customer shall have its third party vendor available at the time that Supplier is scheduled to connect the interface and in order to assist with such connection, as required by Supplier. Transactions processed by a third party vendor system may be subject to separate licensing requirements. Customer acknowledges and agrees that it has the sole obligation to obtain, or cause its third party vendor to obtain, any and all such licenses.5. Custom Development and Enhancement Requests
This Agreement does not include any programming services for custom development or modifications. Such work, if negotiated and agreed to between Supplier and Customer, shall be the subject of a separate agreement for development services between the parties. Customer acknowledges that Supplier is not a contract development organization, but rather Supplier makes a single general release of the Subscription Services available within specified industries. As such, Customer further acknowledges that the Subscription Services are a major and valuable asset of Supplier’s business and, as such, Supplier shall have complete control of the design and development of the Subscription Services, including with respect to any enhancements and modifications. Therefore, Supplier has the right, and sole discretion, to reject any request for enhancement or modification to the Subscription Services by Customer.6. Products
Supplier agrees to resell to Customer the hardware and/or third party software items (collectively, “Products”), if any, indicated in the Order Form subject to the terms and conditions of this Agreement. All Products will be shipped F.O.B. origin. Customer shall be responsible for all delivery costs. Payment by Customer of delivery costs shall be due and payable upon its receipt of Supplier’s invoice.7. Professional Services
Supplier will provide Customer with the Professional Services, if any, set forth in the Order Form(s) (“Professional Services”). Such Professional Services shall be scheduled as mutually agreed upon subject to Supplier’s availability following receipt by Supplier of the signed Agreement and any related deposit. Should Customer require rescheduling of confirmed Professional Service dates, Supplier will make commercially reasonable efforts to accommodate Customer’s request and provide Customer with the next available dates based on Supplier’s then-current availability. Customer shall be responsible for paying for any Professional Services that have been scheduled and confirmed between Customer and Supplier if canceled or rescheduled by Customer less than thirty (30) days prior to the commencement of such Professional Services, unless (and only to the extent that) Supplier is able to reschedule the resource with another customer using commercially reasonable efforts.8. Payment Terms
Customer agrees to pay the fees set out in the Order Form(s). Customer shall be entitled to decide if it wants to proceed with a monthly account paid monthly (a “Monthly Account”), an annual account paid annually (an “Annual Account”) or an annual account paid monthly (a “Monthly Annual Account”). Order Forms shall stipulate whether the Customer’s subscription for the Subscription Services is a Monthly Account, an Annual Account or a Monthly Annual Account. All fees are payable in accordance with the terms and payment method set out in, and in the currency specified in, the Order Form(s). Customer will also pay for Professional Services at Supplier’s then prevailing rates, unless otherwise indicated on the Order Form. For Professional Services provided on-site at Customer’s site or another Customer designated location, Customer will also be responsible for including travel, meals, accommodation and related expenses incurred by Supplier’s employees or agents. Unless otherwise indicated on the invoice, all invoices are due upon receipt. Fees stated in the Order Form are inclusive of Taxes (as defined in Section 9). Other than as provided for pursuant to Section 16 (Indemnification), Supplier does not provide credits or refunds for fees already due or paid. If Customer wishes to decrease its use of the Subscription Services after the (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Customer may do so after the Initial Term provided that Customer notifies Supplier at least thirty (30) days in advance for Annual Accounts and Monthly Annual Accounts and at least three (3) days in advance for Monthly Accounts. If Customer wishes to increase its use of the Subscription Services (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Customer must notify Supplier in advance and pay any applicable fees.Where Customer has opted for a Monthly Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each month beginning with the date the Subscription Services were first purchased.
Where Customer has opted for a Monthly Annual Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each month beginning with the date the Subscription Services were first purchased.
Where Customer has opted for an Annual Account, the Customer’s credit or debit card or other payment method (as set out in the relevant Order Form) will be charged the fees set out therein on or around the same date of each year beginning with the date the Subscription Services were first purchased.
In the event that this Agreement automatically renews and the parties hereto enter into a Renewal Term (as defined below), all Subscription Services purchased under applicable Order Forms shall automatically renew at the Supplier’s then standard rate applicable at the time of automatic renewal (the “Renewal Fees”). The Customer acknowledges and agrees that Renewal Fees may be different from the original fees paid during the Initial Term (as defined below). Renewal Fees will be subject to the same payments terms in this Section 8 and shall be paid using the same credit or debit card or other payment method as set out in the relevant Order Form unless Customer provides a new credit or debit card or other payment method to Customer.
The Supplier may, at its sole discretion and at any time, vary the prices for the Subscription Services. Any such variation shall take effect immediately upon notice to the Customer. Continued use of the Subscription Services after such notice shall constitute acceptance of the varied price.
Any and all invoice disputes must be initiated by Customer in good faith and in writing to Customer’s own bank by the due date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer and will be due and payable. If Customer initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. Once the dispute is brought to the Customer’s own bank, Supplier will be made aware and will submit its own evidence in the matter. Supplier and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute. With regard to any undisputed invoiced amount that is not paid when due, Supplier reserves the right to charge, and Customer agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to one percent (1%) per month. If it is determined that Supplier properly charged any amount disputed and withheld by Customer, the late fee will be assessed and paid on the disputed, withheld amount.
Except for a good faith dispute as outlined above, should Customer fail to make any payment hereunder when due, Supplier reserves the right to suspend or interrupt the provision of Customer’s access to the Subscription Services (and all related services provided hereunder) until such non-payment is remedied, provided that Supplier provides Customer with at least three (3) days advance notice (including via email notification or other form of notification via the Subscription Services) that fees remain outstanding. In such event, Supplier shall not be precluded from exercising any additional remedies that might be available to it under the terms of this Agreement or otherwise.
Customer may connect its payment processing account to Supplier’s to facilitate transactions with its Clients (as defined below). Customer acknowledges and agrees that its payment processing account is owned and controlled solely by Customer, and that Supplier has no responsibility for the operation of Customer’s payment processing account or for any payments processed through same.
In consideration for Customer’s use of the Subscription Services, Supplier shall charge an application fee on each transaction processed by Supplier (the “Transaction Fee”). The Transaction Fee shall be set out in writing for Customer. Customer authorizes Supplier, through its payment processor, to deduct the Transaction Fee automatically from the transaction proceeds prior to remitting funds to the Customer. Transaction Fees are non-refundable and may be increased at the Supplier’s discretion at a maximum of one time per calendar year during the term of the Agreement.
If this Agreement expires or terminates, for whatever reason, the Clients (as defined below) will lose access the Site and Apps through Customer’s account and subscription for the Subscription Services. Customer acknowledges and agrees that because it, and not Supplier, controls its own payment processing account, any subscriptions or recurring payments between Customer and its Clients (as defined below) will continue until Customer takes action to cancel them or disconnect its payment processing account from Supplier’s account. Customer shall promptly disconnect is payment processing account from Supplier’s account upon expiration or termination of this Agreement. Customer acknowledges and agrees that it is solely responsible for (i) managing or cancelling any such subscriptions with its Clients (as defined below), and (ii) any resulting charges, refunds, disputes, or liabilities. Supplier will not be liable for any amounts charged to the Clients (as defined below) after the expiration or termination of this Agreement and the Subscription Services.
9. Taxes
Customer is responsible for paying all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with Customer’s purchases hereunder. For clarity, Supplier is solely responsible for taxes assessable based on Supplier’s income, property and employees. If Supplier has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order Form and invoiced to and paid by Customer, unless Customer provides Supplier with a valid tax exemption certificate authorized by the applicable competent authority in the relevant jurisdiction (or such other form of confirmation supplied for the same purpose) at least five (5) business days prior to the due date of the applicable Supplier invoice. All fees are payable in full and without reduction or withholding for Taxes. If, for whatever reason, Customer is required by law to withhold any Taxes from fees payable hereunder, Customer shall gross up its payments to Supplier so that Supplier receives the fees in full and free of any such deductions. Customer shall, upon request of Supplier, provide to Supplier proof that Taxes have been paid, if such payment is not made to Supplier directly. If Supplier pays any costs or expenses incurred in relation to any import duties, customs, formalities, permissions or other requirements, then Customer shall promptly reimburse Supplier for all such amounts in full.10. Third-Party Components
In order to properly utilize the Subscription Services, Customer agrees it may require use of certain third party components, which if any shall be listed in the Order Form (“Third Party Components”). Customer acknowledges that Supplier will have no responsibility for the implementation or operation of such Third Party Components.11. Ownership
Customer shall own all right, title and interest in and to any data, including digital files and unstructured content objects, entered or submitted by Customer by means of the Subscription Services (the “Customer Data”). At all times Supplier will own all intellectual property rights (including copyright) in and to (i) the Subscription Services; (ii) any software (other than any Third Party Components) to which access may be provided by means of the Subscription Services; (iii) all upgrades, enhancements and modifications to the Subscription Services and (iv) any software, applications, inventions or other technology developed in connection with the Subscription Services.12. Customer Input
Supplier shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its employees, contractors and agents relating to the operation or functionality of the Subscription Services (collectively, “Customer Input”). Supplier shall have no obligation to incorporate Customer Input into the Subscription Services. Customer shall have no obligation to provide Customer Input. The rights afforded to the Customer under this Section 11 with respect to Customer Data shall be subject to Section 23(b) of this Agreement.13. Use of Logo for Promotional and Marketing Materials
Unless indicated otherwise in the applicable Order Form, Customer provides Supplier with permission to use its trademark, logo and trade name (“Branding”) within Supplier’s promotional and marketing materials. Supplier is granted no other right to the Branding and acknowledges that it shall not gain any proprietary interest in the same. Supplier is under no obligation to make use of, or to provide compensation for, the right or permission granted by Customer to the Branding. Supplier shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials. The permission to use the Branding may be terminated at any time by Customer by providing thirty (30) days’ written notice to Supplier. Upon such termination, Supplier shall refrain from future use of the Branding; however, Supplier may continue to distribute and use the promotional and marketing materials where Customer’s Branding has been previously printed prior to the notice of termination and where such placements cannot be discontinued or altered without Supplier incurring any losses.14. Confidentiality
(a) Definition of Confidential Information.“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Supplier’s Confidential Information includes the Subscription Services and information regarding features, functionality and performance of the Subscription Services; and Confidential Information of each party includes the terms and conditions of this Agreement 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. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 14(b).
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
15. Data and Client Data and Consents
(a) legality, reliability, and appropriateness of all Customer Data. Customer will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy or intellectual property rights, includes malicious code, or that will interfere with the integrity of the Subscription Services.(b) Customer grants to Supplier a royalty-free, non-transferable, non-exclusive license for the term of this Agreement to use Customer Data to the extent necessary to perform the Subscription Services. Notwithstanding anything to the contrary, Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Supplier will be free (during and after the term hereof) to (i) analyze and use such information and data to improve and enhance the Subscription Services and for other development, diagnostic and corrective purposes in connection with the Subscription Services and other Supplier offerings (examples of such uses include optimizing resources and support, research and development, verification of security and data integrity, internal demand planning, industry developments and anonymous benchmarking with other customers), and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
(c) Where Customer is subject to EU data protection laws, the attached Data Processor Addendum shall apply to the extent that Supplier processes personal data on Customer’s behalf.
Customer shall ensure that it maintains and enforces appropriate written terms and conditions with its own clients who access the Site and Apps through Customer’s account and subscription for the Subscription Services (“Clients”) Such terms and conditions must:
- (a) inform Clients that the Site and Apps are provided by Supplier;
- (b) permit and authorize the input, collection, processing, and storage of Clients’ personal data (“Client Data”) on the Site and Apps;
- (c) secure the Clients’ consent to the input, storage, collection and processing of Client Data in accordance with applicable data protection laws; and
- (d) include provisions at least equivalent to the “Acceptable Use Policy” which can be found here: https://www.mypthub.net/legal/acceptable-use-policy/, and “Terms of Use Policy” which can be found here: https://www.mypthub.net/legal/terms-of-use/.
- (a) the use of the Site and Apps by its Clients; and
- (b) the input, collection, processing, and storage of Client Data by Supplier in connection with the provision of the Subscription Services to Customer.
16. Indemnification
(a) Intellectual Property Infringement Indemnification in Favour of Customer. Supplier will hold harmless, defend, and indemnify Customer and its officers, directors, employees, agents, successors and permitted assigns from and against any and all costs, damages and expenses arising out of any claim brought against Customer by a third party based on the claim that the Subscription Services, or Customer’s use of the Subscription Services infringes or misappropriates any United States, Canadian, United Kingdom, European Union, Australian or New Zealand patent, copyright, trade secret, or trademark of that third party, provided that Customer (i) notifies Supplier in writing no later than thirty (30) days after Customer’s receipt of notification of potential claims; (ii) allows Supplier to assume sole control of the defense of such claim and all related settlement negotiations and (iii) provides Supplier, at Supplier’s sole cost and expense, with all reasonable assistance, information and authority necessary to perform Supplier’s obligations under this Section. Supplier will not be liable for any infringement or claim based upon any modification of the Subscription Services developed by Customer, or use of the Subscription Services in combination with software or other technology not supplied or approved in advance by Supplier, or use of the Subscription Services contrary to this Agreement or the documentation related to the Subscription Services, including operator and user manuals. If the Subscription Services are held by a court of competent jurisdiction to infringe, Supplier, at its own expense, shall (a) replace or modify the Subscription Services to be non-infringing; (b) obtain for Customer a right to continue using the Subscription Services; or (c) if neither (a) nor (b) is feasible, terminate the Agreement and refund a portion of the subscription fee paid by Customer for the Subscription Services for which Customer has not yet enjoyed use of the Subscription Services, including fees or costs associated with custom development and services paid for but not yet delivered. THE FOREGOING STATES SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER INDEMNIFIED PARTIES WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.(b) Customer’s Indemnity. Customer agrees to indemnify, hold harmless and defend Supplier, its affiliates and any of their respective officers, directors, employees, agents, successors and permitted assigns from and against all costs, damages and expenses arising out of or on account of any violation of Section 2 (Restrictions) or Section 15(a) (Customer Data) by Customer. Additionally, Customer acknowledges and agrees that Supplier relies on Customer to obtain valid Client consents as detailed in Section 15 and, therefore, Customer shall indemnify and hold harmless Supplier from any claims, losses, damages, or liabilities arising out of or relating to Customer’s failure to obtain such consents or to maintain appropriate Client terms and conditions as set out in Section 15.
17. Warranty & Warranty Disclaimer
(a) Subscription Services – Limited Warranty. Supplier warrants that the Subscription Services will conform in all material respects to the documentation provided by Supplier in relation to the Subscription Services. As Customer’s sole remedy for any breach of this warranty, if Customer brings to Supplier’s notice any incidence of non-conformance, Supplier will use reasonable efforts to correct the error. Supplier shall ensure that it provides reasonable maintenance hours for receiving any such calls.(b) Service Level Guarantee. If the Subscription Services are unavailable to Customer for more than five percent (5%), or such other figure specified in the Order Form, of the scheduled uptime for any month (exclusive of scheduled maintenance time or any downtime attributable to third parties or Customer, or for which Supplier is not responsible (including, but not limited to interruptions and delays inherent in Internet communications), then Supplier will credit Customer with a proportionate share of the Service fees for such month on Customer’s next required payment to Supplier (for example, if the Subscription Services are unavailable for six percent (6%) of the month, then the credit will be equal to six percent (6%) of the fees in respect of that month). In order to receive downtime credit, Customer must notify Supplier in writing within forty eight (48) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service fees in any one (1) calendar month in any event. Supplier will only apply a credit to the month in which the incident occurred. Supplier’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Supplier to provide adequate service levels under this Agreement.
(c) Internet. Supplier will use commercially reasonable efforts to ensure that the web pages generated with the Subscription Services will be served (i.e. delivered from Supplier’s internal network or that of its Internet service provider) promptly regardless of the level of traffic to Supplier’s servers, subject to outages, communication and data flow failures, interruptions and delays inherent in Internet communications. Customer acknowledges that problems with the Internet, equipment, software and network failures, impairments or congestion, or the configuration of Customer’s computer systems, may prevent, interrupt or delay Customer’s access to the Subscription Services or data stored within the Subscription Services. Supplier is not liable for any delays, interruptions, suspensions or unavailability of the Subscription Services or the data stored within the Subscription Services, attributable to problems with the Internet or the configuration of Customer’s computer systems.
(d) System Requirements. Customer acknowledges that the Subscription Services are intended to perform with, and Supplier provides the Subscription Services based upon, the system requirements specified in the Order Form or additional documentation made available by Supplier to Customer, as those may be updated by Supplier from time to time. Supplier has no liability for failure of the Subscription Services based upon Customer’s failure to comply with such system requirements.
(e) Products. Supplier represents that it has the authority of each producer and/or manufacturer of Products which are subject to this Agreement to sell the same to Customer. Customer acknowledges that Supplier makes no warranties, conditions, representations or guarantees, express or implied, concerning Products. Supplier in so far as it is possible hereby assigns to Customer the producer’s or manufacturer’s warranty(s), if any, applicable to the Products. To the extent permitted by law, Supplier makes no representations regarding the validity or enforceability of any such producer’s or manufacturer’s warranty and Customer understands that its sole remedy for any breach of warranty is such as may exist against the producer or manufacturer under the producer’s or manufacturer’s warranty.
(f) Warranty Limitation. The conditions and warranties set forth in this Agreement do not apply to the extent that non-compliance is caused by, or has resulted from, (i) Customer’s use of the Subscription Services other than as authorized in this Agreement; (ii) use of the Subscription Services in combination with other software, data or products that are defective, incompatible with, or not authorized in writing by Supplier for use with the Subscription Services; (iii) any malfunction of Customer’s hardware, computers, computer-related equipment or network connections; and (iv) any modification of the Subscription Services not performed by Supplier or otherwise authorized by Supplier in writing.
(g) Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 17 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE USE OF REASONABLE SKILL AND CARE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR SERVICES PROVIDED IN CONNECTION WITH THE SUBSCRIPTION SERVICES. SUPPLIER’S LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN SUPPLIER OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE.
Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. This may include any consumer law which contains guarantees that protect the purchasers of goods and services in certain circumstances. If any guarantee, representation, warranty, condition or other term is implied or imposed concerning this Agreement under any consumer law or any other applicable law and cannot be excluded (a “Non-Excludable Provision”), and Supplier is able to limit Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of Supplier for breach of the Non-Excludable Provision is limited to one or more of the following, at Supplier’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or (b) in the case of services, the supplying of the Subscription Services again, or the payment of the cost of having the Subscription Services supplied again. Customer may make such a guarantee claim by contacting Supplier at support@mypthub.net. The parties agree that it is Customer’s responsibility to determine whether the Subscription Services are suitable for Customer’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever.
18. Limitation of Liability
EXCEPT FOR LIABILITY ARISING (I) FROM CUSTOMER’S BREACH OF SECTION 2 (RESTRICTIONS), (II) UNDER SECTION 16 (INDEMNIFICATION) OR (III) FOR PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENCE, (IV) FRAUD OR FRAUDULENT MISREPRESENTATION:TO THE FULL EXTENT PERMITTED BY LAW, SUPPLIER’S ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, OR ANY RELATED ITEMS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO SUPPLIER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM; AND
NEITHER PARTY WILL BE LIABLE FOR: (I) ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR IN ANY WAY RELATED TO THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, OR ANY RELATED ITEMS; OR
(II) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA, OR DATA USE (INCLUDING AS A RESULT OF A VIRUS), BUSINESS INTERRUPTION, FAILURE TO REALIZE AN EXPECTED SAVING, CORRUPTION OF DATA, OR CLAIMS AGAINST THEM BY ANY THIRD PARTY,
EVEN IF THE PARTIES ARE ADVISED, OR MAY REASONABLY SUPPOSED TO HAVE BEEN AWARE, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
SUCH LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, WHETHER ARISING BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE AND WILL APPLY TO ALL ORDER FORMS, SCHEDULES, ADDENDA, AGREEMENTS AND ATTACHMENTS RELATED TO THIS AGREEMENT.
THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
19. Term and Termination
(a) Term of Agreement. This Agreement commences on the Effective Date or on the date that access to the Subscription Services is made available to Customer, whichever is sooner, and continues until all subscriptions hereunder have expired or have been terminated. (b) Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter) (a “Renewal Term”), unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the then current term for Annual Accounts and Monthly Annual Accounts and three (3) days for Monthly Accounts.(c) Termination by Customer. Customer has the right to terminate this Agreement if Supplier is in default of any term or condition herein, and fails to cure such default within thirty (30) days after receipt of written notice of such default or if Supplier becomes insolvent or any proceedings are to be commenced by or against Supplier under any bankruptcy, insolvency or similar laws.
(d )Termination by Supplier. Subject to Section 19(e) (Failure to Pay Fees), Supplier has the right to terminate this Agreement if Customer is in default of any term or condition of this Agreement, and fails to cure such default within thirty (30) days after receipt of written notice of such default. Without limitation, it will be deemed a Customer default under this Agreement if Customer fails to pay any amount when due hereunder. Supplier may terminate this Agreement immediately if: (i) Customer breaches Section 2 (Restrictions) ) or Section 15(a) (Customer Data); (ii) Customer becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Customer, Customer assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Customer under any bankruptcy, insolvency or similar laws; or (iii) if Customer develops software or services that is competitive with the Subscription Services or Customer is acquired by or acquires an interest in a competitor of Supplier; or (iv) if, in the Supplier’s sole discretion, Customer is deemed to be excessively aggressive in correspondence with Supplier and its employees.
(e) Failure to Pay Fees. In the event that Customer fails to pay the applicable fees when due, Supplier reserves the right to elect to take one of the following courses of action (without limiting Supplier’s other available remedies): (i) notify Customer that this Agreement will immediately expire (or has expired) effective as of the expiration of the then-current period; or (ii) allow this Agreement to renew for another renewal period, in which event, the applicable fees for such renewal period will continue to be payable; provided, however, that if Supplier does not affirmatively notify Customer that alternative (i) or (ii) has been selected, then alternative (ii) will apply.
(f) Early Termination. Customer understands that Supplier has undertaken significant implementation and investment costs which are intended to be amortized over any initial term indicated on the Order Form (“Initial Term”). In consideration of the costs and the pricing structure acknowledged and accepted in the Order Form, Customer agrees to pay liquidated damages if Customer elects early termination during such Initial Term (other than pursuant to Section 19(c)). The liquidated damages for such early termination will be the value of the fees for the remainder of the Initial Term, or in the event a Renewal Term has been entered into, the value of the fees for the remainder of the Renewal Term shall be payable, along with any outstanding fees for additional modules and services ordered but not yet paid for by Customer since the date of this Agreement. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. Customer acknowledges that the actual damages likely to result from a breach of the Initial Term or the Renewal Term, as applicable, by Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. For certainty and clarity, in the event that Customer elects early termination during the term of the Agreement, whether it be during the Initial Term or any Renewal Term, Supplier shall be under no obligation to refund any payments made by the Customer to Supplier.
(g) Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Supplier will make the Customer Data available to Customer for export or download. After such thirty (30) day period, Customer acknowledges that Supplier will have no obligation to maintain or provide Customer Data. Where Customer is subject to EU data protection laws and a Data Processor Addendum applies, the Data Processor Addendum will govern with respect to the data portability and deletion of Customer Data that is Personal Data (as such term is defined in the Data Processor Addendum).
(h) Surviving Provisions. Following the termination of this Agreement, the Sections titled “Payment Terms,” “Taxes,” “Ownership,” Customer Input,” “Confidentiality,” “Data,” “Indemnification,” “Warranties & Warranty Disclaimer,” “Limitation of Liability,” “Term and Termination,” “Assignment,” “Dispute Resolution,” “Governing Law” and “General Provisions” will continue in full force and effect in accordance with their terms.
20. Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all schedules and Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. In the case of Customer, the following requirements shall exist: (i) Customer must be current with any and all payment due to Supplier hereunder and (ii) Customer shall execute and cause its permitted assignee to execute assignment documents in a form provided by or acceptable to Supplier. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Any purported assignment in violation of this section shall be void and of no effect. Any permitted assignee shall assume all assigned obligations of its assignor under the Agreement.21. Governing Law and Jurisdiction
This Agreement shall be governed, construed and interpreted in accordance with the laws of England and Wales without regard to conflicts of law rules.22. Dispute Resolution
Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this thirty (30) day period, a party may submit the dispute to binding arbitration. Customer shall select an arbitrator from a list of three (3) arbitrators to be provided by Supplier to Customer, each of which shall be skilled in the legal and business aspects of the software industry. The parties agree that the arbitrator’s fee shall be split equally between the parties and that each party shall be responsible for its costs, legal and otherwise, in relation to the arbitration, unless the arbitrator decides that the circumstances justify an award of costs. The arbitration shall be conducted in the English language and shall take place in accordance with arbitration rules of the London Court of International Arbitration in London, England.23. Usage of Artificial Intelligence
By using the Services and Supplier’s (1) internal AI chatbot for customer inquiries and (2) AI tool to assist customers with business insight reporting (collectively, the “AI Tools”), you acknowledge that (1) you have authority to use these features in your role as personnel as a customer with Supplier; and (2) your use of these features shall be subject to the terms of this agreement and the terms set out in this “Usage of Artificial Intelligence” section (collectively, the “Terms”). You further acknowledge that you have read, understood, and agree to be bound by these terms which contain important information about limitations of liability, resolution of disputes through arbitration, and class action waivers. With respect to the usage of any AI Tools, in the event of a conflict between the Terms governing the AI Tools and the general terms and conditions set out in this Agreement, the Terms set out in this Section 23 shall supersede and govern the use of the AI Tools. If you do not agree to these Terms, please refrain from using the AI Tools.-
(a) Use of the AI Tools.
- The AI Tools are provided solely for the purpose of providing information and assistance related to the use of the Services. You may only use the AI Tools for this purpose and for no other purpose and strictly in accordance with these Terms.
- You are solely responsible for the inputs you provide in the AI Tools (including, without limitation, any information you provide and the questions you ask in the AI Tools). By providing any inputs in the AI Tools, you give Supplier, its affiliates and service providers the right to use such input to provide the AI Tools, to comply with law, and to enforce policies of Supplier, its affiliates or service providers, including these Terms. You further represent and warrant that you have all necessary rights and permissions to share and input such information into the AI Tools for Supplier, its affiliates and service providers to use for such purposes.
- Customer shall be entitled to use the AI Tools only if Customer is allotted such free usage of or purchases and subscribes for the relevant and applicable AI Add Ons. All Add On details and specifications shall be set out in product, in the App. Such details shall include the fair usage quota for such AI Add Ons and any consequences for excessive use.
- (b) Prohibited Uses of the AI Tools; Ownership.
- You are prohibited from and may not at any time share or input any confidential, proprietary, or sensitive information in the AI Tools. You understand and agree that we cannot guarantee the confidentiality of any information shared in the AI Tools. You may not at any time share or input any sensitive personal information (as regulated by US federal, state and local data privacy, data protection and data security laws, rules and regulations), including, without limitation, any protected health information (as defined by the Health Information Portability and Accountability Act), and non-public personal information (as defined in the Gramm-Leach-Bliley Act), any consumer health information (as defined in Washington state’s My Health My Data Act), information that could be used to access an email or other account (whether or not in combination with account user name), social security number, payment card information, biometric data or identifiers, race, ethnicity, sexual orientation, religious or philosophical beliefs, or any other information considered sensitive or could lead to a substantial risk of harm to the individual if improperly disclosed. You, not Supplier, shall be solely responsible for any liability arising from your breach of this Section. Any personal information provided via the AI Tools shall be treated in accordance with Section 23(h) below.
- Without limiting the generality of Section 23(a)(i) above, you are prohibited from and may not use the AI Tools for any of the following purposes: (i) illegal activity; (ii) abusive or exploitive purposes; (iii) generation of harmful, harassing, or violent content; (iv) generation of malware; (v) activities that have a high risk of physical harm or economic harm; (vi) fraudulent or deceptive activity; (vii) activities that violate people’s privacy or other rights; or (viii) to provide professional advice to others.
- You understand and agree that as between you and us, we and our licensors are the sole and exclusive owner of the AI Tools software, and you are prohibited from creating derivative works, reproducing, modifying, adapting or distributing the AI Tools software, whether in whole or any part thereof, without the express written consent of Supplier. You understand and agree that as between you and us all outputs of the AI Tools are exclusively owned by Supplier and you shall not create derivative works, reproduce, modify, adapt or distribute such outputs, in each case, whether in whole or any part thereof, without the express written consent of Supplier
- You understand and agree that the AI Tools software and AI Tools outputs are the confidential information of Supplier and agree to not disclose or permit any third party to access the AI Tools software or disclose any of the AI Tools outputs to anyone without the prior express written consent of Supplier. You agree to only use the AI Tools outputs for purposes of using the Services offered by Supplier and in strict accordance with these Terms, including, without limitation, Section 23(g) below.
- (c) No Reliance, Warranty or Liability.
- The AI Tools is provided “as is” on an “as available” basis without any warranties of any kind whatsoever.
- You should use discretion before relying on or using content provided by the AI Tools (the “AI Generated Output”). AI Tools may sometimes provide unreliable, inaccurate or incomplete content. Use of the AI Tools is not a substitute for Customer’s own professional judgment or independent verification. Customer is solely responsible for reviewing, validating, and verifying the accuracy, appropriateness, and legality of any AI Generated Output before using or relying on them. Customer remains fully responsible for its use of AI Generated Output, including any decisions, actions, or omissions taken in reliance on such AI Generated Output. Supplier disclaims any and all liability arising from or related to Customer’s reliance on AI Generated Output.
- Supplier and its affiliates hereby disclaim any and all warranties, express or implied or statutory, OF ANY KIND, INCLUDING, BUT NOT limiting to, any warranties regarding the accuracy, reliability, or completeness of any information provided in the AI Tools OR THE AVAILABILITY OF THE AI Tools.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Supplier and its affiliates shall not be liable for any direct, indirect, incidental, special, consequential, EXEMPLARY or punitive damages arising from the use of the AI Tools or reliance on the information provided, even if Supplier and its affiliates have been advised of the possibility of such damages.
- (d) No Professional Advice.. The AI Tools are not a substitute for professional advice, including but not limited to legal, medical, financial, technical or other professional advice. Do not rely on the AI Tools for legal, financial, technical, medical or other professional advice. Always seek advice from qualified professionals when needed.
- (e) Binding Arbitration; Class Action Waiver.PLEASE READ THE FOLLOWING SECTIONS CAREFULLY. THEY AFFECT YOUR LEGAL RIGHTS. By accepting these Terms, you agree to resolve any dispute with us through binding arbitration and to waive your rights to participate in any class action suit and to a jury trial. This agreement to arbitrate, class action waiver, and jury trial waiver shall survive termination of these Terms or your discontinued use of the AI Tools. Any dispute arising out of or relating to these Terms or your use of the AI Tools shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association, by a sole arbitrator, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION.
- (f) Confidentiality.Notwithstanding anything else contained in this Agreement, Customer agrees not to disclose or share any conversations or information obtained through the AI Tools with third parties, and you acknowledge that all such AI Tools conversations, if applicable, are confidential information of Supplier. Customer shall protect such conversations or information from inadvertent or unauthorized disclosure or misuse. You shall only use information from such conversations, if applicable, in connection with your use of the Services and for no other purpose.
- (g) Privacy.Your use of the AI Tools may be subject to Supplier’s privacy policy to the extent you provide the AI Tools with any personal information; your use of the AI Tools is also subject to our privacy policy which can be found here: https://www.mypthub.net/legal/privacy-policy/.
- (h) Changes to this Policy.We reserve the right to amend this policy at our discretion and at any time. When we make changes to this policy, we will post the updated notice on this site and update the notice’s last updated date. Your continued use of the AI Tools following the posting of changes constitutes your acceptance of such changes.
- (j) Contact InformationFor any questions or concerns regarding these Terms or the AI Tools, please contact Supplier at support@mypthub.net.
24. General Provisions
- (a) Export Compliance: The Subscription Services and derivatives thereof may be subject to export laws and regulations. Each party represents that it is not named on any denied-party list under applicable law. Customer agrees that (i) it shall not permit access or use of the Subscription Services in violation of any applicable embargo, export law or regulation and (ii) no data, information, program and/or materials resulting from the Subscription Services (or direct product thereof) will be exported, directly or indirectly, in violation of such laws.
- (b) Anti-Corruption: Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Supplier’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Supplier.
- (c) Modifications: We reserve the right to amend this Agreement at our discretion and at any time. Your continued use of Services and/or Products constitutes your acceptance of such changes
- (d) Subcontractors and Third-Parties: Supplier reserves the right to make use of subcontractors and third-parties to provide services and to use such means as Supplier, in its sole discretion, considers appropriate. Supplier also reserves the right to make use of third-party software to provide the Subscription Services. Supplier shall not be responsible for the acts or omissions of the subcontractors or third-parties it uses in the provision of the Subscription Services. Supplier’s use of subcontractors or third-parties shall not relieve it of its obligations under this Agreement.
- (e) Independent Contractor: The relationship of the parties established by this Agreement is that of independent contractors. This Agreement does not establish an agency, joint venture or partnership relationship between Supplier and Customer. Supplier and its personnel, agents, Suppliers, and Supplier’s authorized representatives, are acting as independent contractors and not as employees or agents of Customer. Nothing in this Agreement will be construed to permit either party to bind the other or to enter into obligations on behalf of the other party.
- (f) Non-Solicitation: During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement, each party hereto agrees not to solicit, recruit or employ any employee of the other party without the prior written consent of the Chief Executive Officer, President or Director of the other party. For purposes of this section, the terms “employee,” shall include any person with such status at any time during the six (6) months preceding any solicitation in question. For the avoidance of doubt, the foregoing restriction shall not apply to the following forms of solicitation (and resulting employment): (i) a party using general bona fide solicitations directed at the public or industry participation in general in publications or internet resources not specifically targeted at employees of the other party, or employing any person who responds to such solicitations; (ii) using search firms, or hiring any persons solicited by such search firms, so long as such firms are not advised by a party to solicit employees of the other party; or (iii) soliciting any person who has left the employment of the other party prior to the date of this Agreement.
- (g) Force Majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control provided that the party affected by such failure or delay gives the other party prompt written notice of the cause and uses commercially reasonable efforts to correct such failure or delay within a reasonable period of time.
- (h) Severability: If any provision contained herein or part thereof is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.
- (i) Headings: The headings and subheadings contained herein are inserted for convenience of reference only and shall in no way be construed to be interpretations of terms.
- (j) Notices: All notices under this Agreement shall be in writing via email to support@mypthub.net. Notice shall be deemed to have been given upon receipt by Supplier of any such notice. Notices to Customer shall be sent to the email address on file in Customer’s account.
- (k) Waiver: No delay by either party in enforcing any of the terms or conditions of this Agreement will affect or restrict such party’s rights and powers arising under this Agreement. No waiver of any term or condition of this Agreement will be effective unless made in writing. The waiver by any party of a breach of this Agreement does not constitute a waiver of a repeat of the same breach or of other breach of rights or obligations under this Agreement.
- (m) Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this Agreement and supersedes and replaces all prior or contemporaneous terms and conditions, including prior versions of these terms and conditions contained herein, agreements, understandings, proposals, and all previous negotiations and communications between the parties and their representatives, whether oral, electronic or written, with respect to the subject matter of this Agreement. For greater certainty, this Agreement will prevail over terms and conditions of any Order Form, which will have no force and effect, even if Supplier accepts or does not otherwise reject the purchase order. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. By continuing to access or use the Services after the effective date of these terms, you agree to be bound by this Agreement. If you do not agree, you must discontinue use of the Services.
- (n) Counterparts: This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
- (o)Acknowledgement of Negative Option Terms. The Customer acknowledges, understands, consents and agrees to the negative option terms contained within this Agreement. For clarity, negative option terms generally refer to:
- any automatic renewal terms (e.g., a subscription or service that renews unless a customer cancels in advance);
- continuity plans (e.g., a customer agrees in advance to receive a service/goods and will continue to do so unless they cancel);
- pre-notification negative option plan (e.g., a supplier provides notices of offering goods/services and then sends them to a customer, and charges, unless customer declines)
- (p) Monitoring. During the term of this Agreement and for 12 months thereafter, Supplier (or its designated independent auditor) shall have the right, upon reasonable prior written notice, to audit and inspect, no more than one time every calendar year, Customer’s relevant records, systems, and facilities solely as reasonably necessary to verify Customer’s compliance with this Agreement and its use of the Subscription Services. Any such audit shall be conducted during Customer’s normal business hours, in a manner that does not unreasonably interfere with Customer’s operations. Supplier shall bear its own costs of any audit, unless the audit reveals a material breach of this Agreement, in which case Customer shall reimburse Supplier for its reasonable out-of-pocket costs. All information obtained in connection with an audit shall be deemed Confidential Information pursuant to this Agreement.