THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. A FREE TRIAL FOR OUR SERVICES INCLUDES BUT IS NOT LIMITED TO FREE ACCESS TO A PREMIUM / PAID EDITION OF OUR FREE HOSTED APPLICATIONS OR ACCESS TO THE FREE EDITION OF OUR HOSTED APPLICATIONS. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT INSTALL OR USE THE SERVICES.
You may not access the Services if You offer services competitive or substantially similar to Ours, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 1st, 2017. It is effective between You and Us as of the date of You accepting this Agreement. From time to time, We will amend this Agreement and publish an amended version on Our website at: www.passagetech.com/products/msa It is Your responsibility to periodically check for any updates made since the last update occured and thoroughly review this amended agreement online and to abide by its contents. If You do not agree with any amended versions published, You must immediately discontinue use of the services.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership, signatory authority, or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Services" means the products and services that are ordered by You under a free trial or an Order Form and made available by Us online via the customer login link at http://www.passagetech.com and/or other web pages designated by Us. This includes software that includes object code versions of the product, together with the updates, upgrades, modifications, or enhancements owned and provided by Passage Technology to You pursuant to this agreement.
“Software” means the object code (machine readable) version of any computer programs or apps offered by Us and any ancillary data files, modules, libraries, tutorial, or demonstration programs or other components and copies of any of the foregoing or portions thereof."User" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means Passage Technology LLC described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or entity for which You are accepting this Agreement on behalf of, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
“Website” collectively refers to all websites and domains owned by Us.
The Services include application(s) made up of individual software components, each of which was individually written and copyrighted. The Services are a collective work under U.S. Copyright Law. Upon installation of the application(s), We hereby grant You the following license to use the Services in Your facility subject to the terms contained herein subject to the licenses referenced herein. Unless otherwise indicated, the Services and all content, including, without limitation, and the selection and arrangement thereof, are Our proprietary property or are licensed to Us and are protected by United States and international intellectual property laws. Any use, copying, redistribution and/or publication of any part of the Services other than as authorized by this Agreement or expressly authorized in writing by Us, is strictly prohibited. In addition, the look and feel of the Services may not be copied, imitated or used, in whole or in part, without Our prior written permission. You do not acquire any ownership rights to the Services or any other materials made available by and through the Services, and We reserve all rights not expressly granted in this Agreement.
RIGOROUS ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS. If the Services are
used by the Licensee with any intent to reverse engineer, decompile, create derivative works, and the exploitation or unauthorized transfer of, any of Our intellectual property and trade secrets, to include any exposed methods or source code where provided, no licensed right of use shall exist, and any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of intellectual property or created derivatives so obtained will be prosecuted to the fullest extent of all local, federal and international law.
NO LICENSE TO COMPETITORS. You are not granted a license to access or use the Services if You offer services competitive or substantially similar to Ours or are in indirect or direct competition with Us, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
You agree that You shall not, without Our express prior written authorization, either during, or within eighteen (18) months of the termination or expiration of this Agreement: (a) induce or attempt to induce any employee of, or consultant to, Us or Our subsidiaries to leave the employ of, or consultancy to, Us or Our subsidiaries, or in any way interfere with the relationship between Us or Our subsidiaries and any employee or consultant thereof; (b) hire any person who was an employee of, or consultant to or was in any way compensated by Us (whether as an employee or as an independent contractor or agent), or Our subsidiaries at any time during the eighteen-month period immediately prior to the date on which such hiring would take place without the written consent of an officer or representative of Us (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such eighteen-month period is in violation of clause (a) above); (c) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of Us or Our respective subsidiaries in order to induce or attempt to induce such person to cease doing business with Us or Our subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and Us or Our subsidiaries (including, without limitation, making any negative statements or communications about Us or Our subsidiaries); (d) call on, solicit, or take away or attempt to call on, solicit, or take away any of Our customers and vendors on whom We called or became acquainted during Our contractual relationship with the other Party, either on Our behalf or that of other person, firm, or corporation. If You breach this Section, You agree to pay Us liquidated damages in the amount of $250,000.00 (“Liquidated Damage Amount”), which amount shall be deemed a genuine pre-estimate of the foreseeable damages incurred by Us and is not punitive in nature. You acknowledge that the actual damages likely to result from breach of this clause are difficult to estimate as of the date of this Agreement’s execution and would be difficult for Us to prove. The Parties intend that Your payment of the Liquidated Damages Amount would serve to compensate Us for any breach by You of Your obligations under this clause, and they do not intend for it to serve as punishment for any such breach by You. Furthermore, You agree that this Liquidated Damage Amount shall be payable within thirty (30) days of the commencement of the individual’s start-date with You.
2.1 Grant of License. We hereby grant to You a non-exclusive, non-transferable, personal license to use the Services and any related documentation ("Documentation") for the sole purpose of updating and querying data that resides in Your Salesforce org.
(a) You may not: decompile, reverse engineer, disassemble, analyze, modify, adapt, convert, create derivative works from, or otherwise attempt to derive, the Services
(b) You may not: sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Services or any data/information provided to the You through the Service to a person
(c) You may not vary or amend this Agreement without Our prior written approval
(d) You may not except as otherwise permitted in this Agreement, publish, promote, broadcast, circulate or refer publicly to Our name, trade name, trademark, service mark, or logo
(e) You may not commit any act or omission the likely result of which is that Our reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Our interests
(f) You agree that You shall only use the Services and Documentation in a manner that
complies with all applicable laws in the jurisdictions in which You use the Services and
Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights
(g) This Agreement does not grant You any rights in connection with any trademarks or service marks of Us or Our suppliers. All title and intellectual property rights in and to the Services (including but not limited to any images, photographs, animations, video, audio, music, and text incorporated into the Services, and any copies of the Services) are owned by Us, Our suppliers, or are publicly available. All title and intellectual property rights in and to the content which may be accessed through use of the Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. All rights not expressly granted under this Agreement are reserved by Us and Our suppliers
(h) You may not permit any third party to access the Services except as permitted herein or in an Order Form
(i) You may not copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes
(j) You may not copy any features, functions or graphics of the Services
(k) You may not collaborate with other individuals or entities to create derivative works
(l) You may not communicate with other individuals or entities features, functions, or user interface components for the purpose of creating competitive products. Any attempt to do so will be prosecuted to the fullest extent of all local, federal and international law.
In addition, the Services include license protection mechanisms that are designed to manage and protect Our intellectual property rights. You must not modify or alter those features to try to defeat the Services use rules that the license protection mechanisms are designed to enforce.
2.3 Free Trial. If You register on any Website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered or are registering to use the applicable Service, or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration Website. At any time during Your usage of Our free trial, You acknowledge that We may change the features included in the free trial version of Our Services and hosted applications such that they are only accessible when You have acquired Our Purchased Services and that they will no longer be available in the free trial version. In this situation, We are under no obligation to provide You access to such features on a free trial basis/gratis basis. Conversely, You acknowledge that at any time during Your usage of Our Purchased Services, You acknowledge that We may change the features included in the Purchased Services version of Our hosted applications such that certain features are now also accessible if You had just installed Our free trial and not acquired Purchased Services. In this situation, We are under no obligation to provide You Our Purchased Services, either in part or in full on a free trial basis/gratis basis, or a refund of any kind. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO ANY NON-PURCHASED SERVICES.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITH ALL FAULTS, DEFECTS, AND ERRORS AND WITHOUT ANY WARRANTY OF ANY KIND.
This application is hosted by Salesforce.com and by accepting this Agreement You acknowledge that You will abide by Our terms in this Agreement and that You are still liable for any terms You have already agreed to with Salesforce.com.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased in the form of Salesforce org subscriptions intended to be deployed in production environments and may be accessed by no more than the specified number of Users listed (if applicable), (ii) additional subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional subscriptions are added, and (iii) any added subscriptions shall terminate on the same date as the pre-existing subscriptions. If User Subscriptions are purchased, they cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer use the Services.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We are not responsible for non-availability of the Purchased Services due to: (a) planned downtime (of which We shall give advanced notice and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) causes beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. We shall provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Our Protection of Your Data. We shall not: (a) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (b) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with Your support matters.
4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You agree to indemnify Us from and against all loss and damage you may suffer, and from all actions, claims, proceedings or demands by third parties against Us, arising in any way from a breach of this Section 4.3 or otherwise set forth in this agreement.
4.4. Usage Limitations. Services may be subject to other limitations including and without limitation the following: (1) You may not tamper with or circumvent any security technology included with the Service; (2) Our delivery of data to You as required by Your regular use of the Services does not transfer any promotional use rights to You, and does not constitute a grant or waiver of any rights of the copyright owners; (3) You shall not use the Services in violation of any applicable laws or for any purpose not specifically permitted in this Agreement Any such limitations are available by contacting Us at firstname.lastname@example.org.
4.5. PUBLICITY RIGHTS. You acknowledge that providing customer references and/or including logos on Our Websites, printed materials, or other promotions is a critical part to Our success in keeping the cost of Our Purchased Services low by increasing Our brand reputation and reducing Our cost of sales. To that end, unless You notify Us via email, You grant Us the right to use Your name and/or logo for any advertising, publicity, or other business purpose at any time during the term of this Agreement, and may continue to use materials generated during the term of the Agreement for a period of twenty four (24) months thereafter. Upon receiving Your email, We will attempt to delete Your customer reference, customer story, and/or logo to the extent possible or replace the logo with an image approved by You.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Unless otherwise stated, Subscription fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof; therefore, fees for subscriptions added in the middle of a annual period will be charged for the monthly periods remaining in the subscription term.
5.2. Invoicing and Payment. We will invoice You in advance of the end of Your relevant subscription term or otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net fourteen days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. In the event that payment is made via a third party agent, You shall indemnify Us and keep Us indemnified against any loss, damage, costs and expenses We suffer or incur as a result of any default by the third party agent in making payment in accordance with the terms of the Order Form or as otherwise set forth in this Agreement.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Our services is thirty or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least seven days’ prior notice that Your account is overdue, in accordance with Section 12.1, before suspending services to You.
5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 or 5.4 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
5.7. Records and Review. We have audit rights with respect to Your usage of the Services, including audit or inspection of Your access and utilization of the Services.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services and documentation, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. The Services are protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software and the Services ("Content") shall be retained by the applicable Content owner and may be protected by applicable copyright or other law. This license gives you no rights to such Content. In addition, We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You.
6.2. Your Data. Subject to the limited rights granted by you hereunder, We acquire no right, title or interest from you or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. You acknowledge that the Services may contain functions for collecting information related to your use of Our Services. You agree that We may also collect and track non-personally identifiable information about You, including but not limited to Your IP address, the type of hardware You use, and the type of browser You employ. We reserve the right to compile, save, use within the scope of Our activities, and analyze any and all of Your data (registration data, and use history). We shall use such data for internal purposes only, including for the purposes of responding to Your requests for information and for contacting You. We may provide aggregated statistics about Your use of the Services to third parties, but such information will be aggregated so that it does not identify a particular individual or company.
6.3. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms or under this Agreement, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services, Our trade secrets, know-how and information relating to the Services’ underlying technology, Our clients, Our customers, Our business plans, Our marketing activities, and Our finances; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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 (other than Your Data) shall 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.
7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such 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 shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties.
(i) We warrant that We have validly entered into this Agreement and have the legal power to do so. (ii) We warrant that Your satisfaction is guaranteed with Our Services within thirty days of Your order date. If You are not satisfied with one of Our Services within thirty days of Your order date, please contact Us via phone at +1 847-574-5742 on a business day falling within thirty days of Your order date and between the hours of 9:00 AM CST and 5:00 PM CST and request to file a claim under Our “30 Day Satisfaction Guarantee”. If We accept Your claim as valid, We will, at Our discretion, either: a) correct the situation, b) provide a refund, or c) offer credit that can be used for future orders from Us. We cannot refund any money paid by You directly to third parties, such as payments made by You directly to third party consultants who have implemented, used, or recommend Our product(s) stand-alone or in concert with their applications or solutions. Any refunds issued will be in the original form of payment or by check. We will accept claims as valid if they concern product defects as classified by Passage Technology and if they are submitted according to this subpart.
For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below.
8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.3. NO LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR DATA BEING RENDERED INACCURATE, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE OUR SERVICES, EVEN IF PASSAGE TECHNOLOGY OR A DEALER AUTHORIZED BY US HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the date of the start date specified in the applicable Order Form and continue for the subscription term identified on the order. All Purchased subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of termination as follows:
For monthly subscription terms: at least twenty days before the end of the relevant subscription term. The per-unit pricing during any such renewal term is subject to change.
For all other subscription terms: at least thirty days before the end of the relevant subscription term. The per-unit pricing during any such renewal term is subject to change.
10.3. Termination. We may terminate this Agreement without cause so long as You are given written notice at least seven days prior to the intended termination date. You may terminate this Agreement as follows: (i) within thirty days of the order date of Your subscription term, or (ii) if We become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, or (iii) at any time after the purchase date of Your subscription term, so long as You purchase the applicable “cancel at any time” service upgrade permitting You to cancel this Agreement at any time (“Termination for Cause by You”). The termination date for the “cancel at any time” Services shall be the date that Your access to Our Services was blocked, revoked, frozen, or prohibited by Us. Your uninstallation or nonuse of the Services shall be insufficient to terminate this Agreement.
10.4 Force Majeure. We may terminate this Agreement and We shall not be liable for any performance failure, delay in performance, or lost data under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by (a) natural weather events, (b) war; or (c) any other causes beyond Our reasonable control, including, without limitation, suspension by Salesforce, failure of suppliers, subcontractors, and carriers to substantially meet its performance obligations under this Agreement (“Termination for Cause by Us”). In any such event, We shall give You prompt written notice of termination or suspension of this Agreement, with full details following the occurrence of the cause relied upon.
10.5. Refund or Payment upon Termination. Upon any Termination for Cause by You, We may provide credit for future Services purchased from Us by You.
Upon any Termination for Cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Termination in this manner will have no effect on Your performance obligations or amounts to be paid which have accrued up to the effective date of such termination. In no event shall termination in any manner relieve You of the obligation to pay any fees payable to Us.
10.6. Return of Your Data. We have no obligation to protect Your Data or to provide any backups or restorations of Your Data and shall, upon uninstallation, delete all of Your Data in Our systems, or otherwise in Our possession or under Our control.
10.7. Surviving Provisions. The rights and obligations of the parties set forth in this Section 2.2 (Restrictions), Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9.3 (No Liability), 10.5 (Refund or Payment upon Termination), 10.6 (Return of Your Data), 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 12 (General Provisions), and any right or obligation of the parties in this Agreement which, by its express terms or nature and context shall survive termination or expiration of this Agreement.
11. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
11.1. General. Any notice or other communication provided for herein or given hereunder to a party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to:
Passage Technology LLC
100 Saunders Rd
Lake Forest, IL 60045
11.2. Governing Law. This Agreement shall be governed exclusively by the laws of the state of Illinois. In the event that litigation results from or arises out of this Agreement or the performance thereof, the parties agree to reimburse the prevailing party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing party may be entitled. Prevailing party shall have the definition enumerated in Section 12.7 herein.
11.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our 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 You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us according to Section 11.1.
12.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.4. No Third-Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person or entity not a party to this Agreement.
12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7. Attorney Fees. If a suit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this Agreement, or to interpret or enforce any rights under this Agreement or the Illinois Limited Liability Company Act, the prevailing party may recover reasonable attorney’s fees and costs. Prevailing party shall be defined: (1) as a claimant that is awarded net 51% of its affirmative claim, after any offsets for claims or counterclaims by the other party, and (2) as a defendant/respondent against whom an award of less than 50% of a claimant’s claim is granted. To the extent that an arbitrator determines that a party to an arbitration has failed to prevail in that arbitration, the arbitrator shall allocate to that party the costs of the arbitration, including reasonable attorneys’ fees and fees payable to the arbitrator.
12.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.