SEFAIRA MASTER SUBSCRIPTION AGREEMENT
Revised: July 29, 2013
THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT“) GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY USING THE SERVICE, 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 THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER” “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 THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
NOTE IN PARTICULAR SECTION 7 BELOW. THIS PROVIDES THAT THE CHARGES FOR THE SERVICE WILL BE AUTOMATICALLY DEDUCTED FROM YOUR CREDIT CARD OR OTHER PAYMENT METHOD (OR, IF YOU BELONG TO A GROUP OF USERS, THEN THE CHARGES WILL BE PAID FOR BY THE CONTRACTING COMPANY AS DEFINED IN SECTION 7.7) IN ACCORDANCE WITH THE PAYMENT TERMS SET FORTH IN THE ORDER FORM. IF YOU DO NOT WISH TO CONTINUE USING THE SERVICE, YOU SHOULD CANCEL YOUR USE IN ACCORDANCE WITH SECTION 13 BELOW.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 29, 2013. It is effective between You and Us as of the date of You accepting this Agreement.
1. Provision of Purchased Services
1.1 The Sefaira Service (“Service“) comprises (as applicable): Software services (hereinafter “Software“) and Support services (hereinafter “Support”), API Services (hereinafter “API“) and all software, data, text, images, sounds, video, and content made available through the Website or Service, or developed via the API (hereinafter the “Content“) that are ordered by You pursuant to an Order Form.
1.2 Sefaira Professional Services (“Professional Services”) comprise any training and technical consulting services ordered by You pursuant to the Order Form and purchased in support of the Service.
1.3 Sefaira will make the Service available to You during the subscription term in accordance with the terms and conditions of this Agreement and the Order Form and solely for Your internal business operations.
1.4 The Service may include certain downloadable software or content, including, without limitation, any plug-ins provided by Sefaira in connection with the Service (each a “Plug-In”), installable onto Your machine (collectively “Installed Software“). Sefaira hereby grants to You a revocable, non-exclusive, non-transferable, worldwide license to reproduce and use any Installed Software provided to You as a result of the Service during the subscription term in accordance with the terms and conditions of this Agreement and the Order Form and solely for Your internal business operations.
1.5 Software includes (a) the Website and all the systems, tools and services provided through the Website, and (b) any downloadable software installable onto Your machine.
1.6 Support includes support on how to use the Software, and is provided via telephone and email in addition to the on-line help facility accessible via support.sefaira.com.
1.7 API includes machine-to-machine access to Our analytics engine and tools via an application programming interface, as opposed to via a user interface.
1.8 Software, Support, API and Content can be consumed separately or in aggregate according to the Order Form. We shall not be obligated to provide any of these or any other services, where this has not been expressly agreed in the Order Form. If You request Service (for example Support) beyond the amount agreed in the Order Form, such services shall be charged at Sefaira’s standard rates.
1.9 Any updates or upgrades added to or augmenting the Service that are made available to You by Sefaira during the subscription term are subject to this Agreement.
1.10 Professional Services will be delivered within the period stipulated in the Order Form, subject to You making available the necessary personnel to participate in such Professional Services during such period. If You do not make arrangements to participate in such Professional Services within the period stated, We shall have no further obligation to deliver such Professional Services.
1.11 We shall perform any Professional Services in a competent and workmanlike manner in accordance with the level of professional care customarily observed by professionals rendering similar services.
2. Subscriptions and Usage Charges
2.1 Unless otherwise specified in the applicable Order Form (e.g. certain enterprise and other license models that may be offered by Sefaira in its sole discretion), the Service is purchased as User subscriptions. Such User subscriptions are for designated Users only and cannot be shared by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.2 In the case of a Managed License (as set forth in the Order Form), there are no restrictions on the reassignment of Users in 2.1 above. For a Standard License (as set forth in the Order Form), following a reassignment of a license, no further reassignment of a license shall be permitted until a period of 30 days has lapsed.
2.3 Additional User subscriptions may be added during the applicable subscription term at the then-current list price or as otherwise agreed on the Order Form, prorated for the remainder of the subscription term.
3.1 The provision of access to the Service pursuant to this Agreement shall be on a non-exclusive basis and nothing in this Agreement shall prevent Us from providing access to the Service to third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
4. Customer Data
4.1 You shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Notwithstanding the foregoing, You hereby grant to Sefaira a non-exclusive, non-transferable, worldwide, royalty free, license to reproduce and use the Customer Data for Our purposes, including:
(a) providing the Service and Professional Services;
(b) meeting Our obligations under this Agreement; and
(c) aggregating the Customer Data with other data so as to improve the model, metrics and engine of the Services and other Sefaira products and services.
Unless We are required by law to do so, Sefaira shall not disclose in any form whatsoever, other than in aggregated or anonymised form, the Customer Data to any third parties other than its Affiliates, provided that Our Affiliates are fully entitled and authorized hereunder to become recipient of such Customer Data for the purposes subsections (a), (b), and (c) above.
4.2 Notwithstanding the foregoing, to the maximum extent permitted by applicable law, neither Sefaira nor its Affiliates shall be liable in any way for any Customer Data Loss which, for any reason whatsoever, arises out of or in connection with the Customer’s use of the Service.
5. Your Obligations
5.1 You shall:
(a) be responsible for Users’ compliance with this Agreement;
(b) use commercially reasonable efforts to prevent unauthorised access to or use of the Service, and notify Us promptly of any such unauthorised access or use;
(c) provide Us with all such information as may be reasonably required by Us in order to allow Us to meet our obligations under this Agreement;
(d) comply with all applicable laws and regulations with respect to Your activities under this Agreement;
(e) ensure that Your network and systems comply with the relevant specifications provided by Sefaira from time to time;
(f) be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to the Website and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the Internet; and
(g) be solely responsible for making Your personnel available to participate in the Professional Services.
5.2 You shall not:
(a) make the Service available to anyone other than Users;
(b) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service (or any source code relating thereto);
(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service (or any source code relating thereto);
(d) remove, obscure, or alter any proprietary rights notices affixed to or contained within the Service;
(e) assign, sell, rent, lease, sublicense, lend, transfer, resell, or distribute any part of the Service (or any source code relating thereto) to any third party or use the Service on behalf of any third party unless otherwise agreed to in writing by Sefaira in its sole discretion;
(f) access all or any part of the Service in order to build a product or service which competes with the Service including, without limitation, the Software;
(g) create Internet links to or frame or mirror the Service or any content within it; or
(h) display or reference any part of the Service, Software or any Sefaira name, trademark or logo, without Sefaira’s prior written consent in each instance.
6. Intellectual Property Rights
6.1 You acknowledge and agree that Sefaira and/or its licensors own all Intellectual Property Rights in the Service (and any derivative works or any improvement or modifications thereof), together with any associated documentation and all Intellectual Property Rights created pursuant to, during or in connection with any Service or Professional Services provided by Sefaira to You (the “Sefaira IPR“). This also includes the Content as defined in Section 1.1. Except as expressly stated in Section 1.4, this Agreement does not grant You any rights to, or in, any of the Sefaira IPR or any other rights or licences in respect of the Service or such associated documentation. The Service is protected by United States, United Kingdom and international intellectual property laws, including United States patents pending for portions thereof.
6.2 The LEED® certification program is an internationally accepted benchmark for the design, construction, and operation of green buildings in the United States and elsewhere in the world. LEED® is a registered trademark of U.S. Green Building Council (USGBC), used by the Green Building Certification Institute (GBCI) under license from USGBC. Sefaira is not affiliated with USGBC or GBCI. Sefaira is not endorsed by USGBC or GBCI. Sefaira allows users subscribing to certain modules of the Software to forecast an estimated LEED rating of their design concepts. This forecast is an analysis performed by the Software based on an early stage concept design. This forecast does not replace a LEED rating assessment performed by GBCI or guarantee that LEED prerequisites, credits or certification will be conferred at a particular level or at all.
6.3 At Your request, and upon mutually agreed Charges, We may develop customized or enhanced design strategies, features and functionalities of the Service, whether for a particular project or of general application (“Customized Features“). Specific Customized Features shall be set forth in an Order Form. We shall obtain and retain all Intellectual Property Rights to such Customized Features which shall be governed by all terms and conditions of this Agreement, and such Customized Features shall not be considered “works for hire” for the Customer. To the extent You provide input or otherwise contribute to the development of Customized Features, You hereby assign all right, title, and interest in and to such contribution, including, without limitation, all Intellectual Property Rights embodied therein, to Sefaira. You agree to promptly execute and deliver to Sefaira any documents in connection with such assignment that Sefaira may reasonably request.
6.4 The Service may contain cartography and climate data from one or more of the following Third Party sources; to the extent that any such source is used, the relevant provisions below shall apply and this Agreement constitutes acknowledgement of the ownership interest of such Third Parties in the applicable data:
Canadian Weather year for Energy Calculation – based on Environment Canada data;
Future weather data provided by the Centre for Energy and the Environment at the University of Exeter;
UK weather data provided by the Chartered Institution of Building Services Engineers;
US and worldwide weather data provide by the Department of the Environment;
Map data – powered by Google;
None of the above organizations or companies have verified the Service and do not accept any liability for its accuracy.
6.5 Certain Plug-Ins may contain code, commonly referred to as open source software, which is distributed under any of the many known variations of open source license terms, including terms which allow the free distribution and modification of the relevant software’s source code and/or which require all distributors to make such source code freely available upon request, including any contributions or modifications made by such distributor (collectively, “Open Source Software”). To the extent that any Plug-In contains any Open Source Software, that element only is licensed to you pursuant to the relevant license terms of the applicable third party licensor (“Open Source License Terms”) and not pursuant to the licenses contained in this Agreement, and you accept and agree to be bound by such terms. A copy of the Open Source License Terms will be made available upon request.
7. Charges, Expenses, Payment and Refunds
7.1 You shall pay all Charges specified in all Order Forms hereunder. Except as otherwise specified herein or on the applicable Order Form, payment obligations are non-cancellable, Charges paid are non-refundable and the number of User subscriptions cannot be decreased during the relevant subscription term stated on the Order Form.
7.2 You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative documentation reasonably acceptable to Us. If You provide credit card information to Us, You authorise us to charge such credit card for all Charges listed in the Order Form for the initial subscription term and for any renewal subscription term as set forth in Section 13.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 15 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.
7.3 If Your use of the Service exceeds the amount agreed in the Order Form, the amounts accrued are billed at the end of the calendar month following Your Use of the Service. Such additional Services will be billed using the same billing details (e.g. credit card) used for the billing of the other Service.
7.4 In the event that We are not able to recover the Charges from Your credit card or any Charges are not received from You by the due date, You shall remain responsible to pay Us the Charges directly within five (5) days notification from Sefaira, and if You fail to do so, We shall be entitled to terminate this Agreement and cease provision of the Service. Charges not paid within 30 days attract a 2% interest per month (or the highest rate of interest allowed by applicable law), which interest shall be compounded on a monthly basis until the entire balance is paid in full.
7.5 In the event of automatic renewal of this Agreement in accordance with clause 13.2, the provisions stated in clauses 7.1, 7.2 and 7.3 above shall apply to any extended Subscription term and the Charges shall be invoiced at the Renewal Price and at the frequency set out on the Order Form.
7.6 The Charges are exclusive of all taxes, levies or duties, which shall be added to the Charges to the extent applicable.
7.7 For Customers where one company (the “Contracting Company”) has entered into this Agreement on its behalf and on behalf of one or more of its Affiliates (collectively, “Contracting Group“), the Contracting Company shall be invoiced and be responsible for payment of the Charges on behalf of the Contracting Group irrespective of which Affiliate shall have incurred the Charges. All other terms of this Agreement shall apply to all such Contracting Groups regardless.
7.8 For Contracting Group Customers, the Contracting Company will be responsible for compliance with this Agreement by all Users within the Contracting Group of that Contracting Company, for monitoring that all Users within his/her Contracting Group are authorized to be part of that Contracting Group, and for discontinuing Users who are unauthorized or have left the employ or retention of the Contracting Company. From time to time, We may request that the Contracting Company confirm the authorization of all Users in their User Group, and the Contracting Company shall promptly comply with such request. Users within a Contracting Group shall also be responsible for their own compliance with this Agreement and shall discontinue their use of the Service when they leave the employ, retention by or affiliation with the Contracting Company. Notwithstanding any other provision of this Agreement, We shall be entitled to immediately discontinue use of the Service by any User who is not authorized to be part of a Contracting Group or who has otherwise improperly accessed the Service.
8. Trial & Evaluation, Pilots, Sefaira Labs Features and Beta Access
8.1 From time to time and at Our discretion, a trial, evaluation, or pilot period may be offered for the Service, beginning on the day of the first user sign-up or the commencement date as specified in the Order Form, and ending in the date specified in the Order Form (the “Trial Period”). The specific terms of the trial, evaluation, or pilot will be set forth in the Order Form. The terms of this Agreement shall apply fully to You throughout the Trial Period as though You were a paying customer, save as expressly provided in this Section 8. If You do not provide Your payment or credit card details to Sefaira within the free Trial Period, Your account will be suspended at the end of the Trial Period and can only be reactivated by submitting Your payment or credit card information. Once You have provided credit card or other payment details, You will be promptly billed and Your Trial Period will terminate.
8.2 During the Trial Period, Support via email or the Sefaira support portal at support.sefaira.com is provided free of charge. Other than this Support, the Service does not come with a free Trial Period for other Support, and such Support are chargeable during the Trial Period according to the rates set out in the Order Form. If You have not agreed to specific rates in the Order Form, Sefaira standard rates will apply.
8.3 From time to time, We may introduce new features and functionalities in the Software and may allow You to enable and utilize such features in a beta test mode (“Beta Features“) or provide you with access to features designated as Sefaira Labs Features (“Labs Features”). During the period You are permitted to use Beta or Labs features (“Beta Period“or “Labs Period”, as applicable), You use the Beta features or the Labs Features free of Charges but subject to all other terms and conditions of this Agreement. In consideration for this free access to the Beta Features or the Labs Features, You agree to provide Us with feedback as requested, subject to Section 8 of this Agreement. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT BETA FEATURES AND LABS FEATURES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, WHATSOEVER, AND BETA FEATURES ARE NOT COMPLETE, AND CANNOT BE RELIED ON FOR ACCURACY. After the Beta Period for a particular Beta Feature or the Labs Period for a particular Labs Feature is completed and We include such Beta Feature or Labs Feature in the Service generally available to Our customers, We may charge additional Charges for such feature as part of the Service.
9.1 Each party (a “Receiving Party“) understands that the other party (the “Disclosing Party“) may share certain information of a confidential nature during the subscription term. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, source code for the Software; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information. The Receiving Party agrees, for itself and any Affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the confidentiality of the other party’s Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Without granting any right or license, the Disclosing Party agrees that the foregoing will not apply with respect to information that the Receiving Party can document (i) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the Receiving Party or any Affiliate, agent, or employee (provided, however, that an item of Confidential Information shall not be considered in the public domain due to the fact that the individual elements that comprise that item can be found in the public domain); (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it by a third party without violating any obligations to the Disclosing Party; (iv) is independently developed by the Receiving Party without reference to such Confidential Information; or (v) is compelled to be disclosed pursuant to any statutory or regulatory authority, court order, or legal process, provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible.
10. Warranties; Disclaimers and Exclusions
10.1 To the extent the Service includes any Plug-in, we warrant that the Plug-In will, under normal operating conditions, operate substantially in accordance with Our published specification for the Plug-In. We do not represent or warrant that: (a) use of the Plug-In will be secure, timely, uninterrupted or error-free or compatible in combination with any other hardware, software, system or data; (b) the Plug-In will meet your expectations; (c) errors or defects in the Plug-In will be corrected; or that (d) the Plug-In is free of viruses or other harmful components. We make no representation and give no warranty in respect of any Open Source Software component of any Plug-In.
10.2 EXCEPT AS PROVIDED IN SECTION 10.1, THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE AND SKILL WARRANTIES THAT THE SERVICE WILL OPERATE UNINTERRUPTED, BE COMPLETE OR ERROR FREE, OR MEET CUSTOMER’S REQUIREMENTS.
10.3 THE SERVICE IS PROVIDED ON THE BASIS THAT THE CUSTOMER RETAINS ITS OWN PROFESSIONAL LICENSED ENGINEERING, ARCHITECTURE, QUANTITY SURVEYOR, COST CONSULTANT AND CONSTRUCTION ADVICE, AS THE SERVICE IS NOT THE PROVISION OF AND IS NO SUBSTITUTE FOR QUALIFIED AND LICENSED PROFESSIONAL ENGINEERING, ARCHITECTURAL, STRUCTURAL, QUANTITY SURVEYOR, COST CONSULTANT OR CONSTRUCTION ADVICE OBTAINED BY CUSTOMER AT ITS OWN COST AND EXPENSE.
10.4 SEFAIRA DOES NOT PROVIDE PROFESSIONAL OR LICENSED ARCHITECT, ENGINEERING, OR CONSTRUCTION SERVICES, WHICH ARE THE RESPONSIBILITY OF THE CUSTOMER OR CUSTOMER’S LICENSED PROFESSIONALS. THE CUSTOMER AGREES THAT SEFAIRA SHALL NOT BE THE ENGINEER OR ARCHITECT OF RECORD ON ANY PROJECT, AND THAT THE CUSTOMER ALWAYS MUST HAVE ITS PLANS SIGNED OFF BY APPROPRIATE STRUCTURAL, ARCHITECTURAL, MECHANICAL OR OTHER ENGINEERS OR ARCHITECTS PROVIDING INDEPENDENT ADVICE ON ALL DESIGN AND/OR CONSTRUCTION-RELATED MATTERS.
11. Limitation of Liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID AND PAYABLE BY LICENSEE TO SEFAIRA DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
(c) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 11 WILL NOT APPLY TO (A) INDEMNIFICATION OBLIGATIONS RELATING TO THIRD PARTY CLAIMS HEREUNDER; (B) EACH BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER; AND (C) ANY UNAUTHORIZED USE OF THE INTELLECTUAL PROPERTY RIGHTS OF ONE PARTY BY THE OTHER PARTY.
12.1 We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (“Claim”), and shall indemnify You for any damages, attorney fees, and legal costs finally awarded against You as a result of such Claim; provided that You (a) promptly give Us written notice of such Claim; (b) give Us sole control of the defence and settlement of such Claim (provided that We may not settle any Claim against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
12.2 We will have no obligation to defend or indemnify You for any Claim under Section 12.1 to the extent that the Claim results from: (a) modifications to the Service (including Software) made by You or a third party, unless made at Our direction, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation, or use of the Service (including Software) with equipment, devices, software, systems, or data not supplied, approved, or intended by Us, if the infringement or misappropriation would not have occurred but for such combination, operation, or use; (c) Your failure to use updated or modified Service (including Software) provided by Us to avoid infringement or misappropriation; (d) Your failure to stop using the Service (including Software) after receiving written notice to do so from Us in order to avoid infringement or misappropriation; or (e) Your use of the Service other than as authorized by this Agreement.
12.3 If use of the Service is, or in Our reasonable opinion is likely to be, subject to a Claim under Section 12.1, We may, at its sole option and at no additional charge to You: (a) procure for You the right to continue using the Service; (b) replace or modify the Service so that it is non-infringing and substantially equivalent in function to the original Service; or (c) if options (a) and (b) above are not accomplished despite Our reasonable efforts, terminate this Agreement (in which event, You will immediately stop using the Service) and refund a pro-rated portion of the Charges paid by You to Us for the current subscription term.
12.4 THIS SECTION 12 SETS FORTH SEFAIRA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SERVICE.
13. Term and Termination
13.1 This Agreement shall commence on the date You accept it, and shall continue thereafter until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
13.2 User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per User pricing during any such renewal term shall be at the Renewal Price.
13.3 Either party may with immediate effect terminate this Agreement by written notice to the other party (a) if the other party breaches any provision of this Agreement (including non-payment of Charges) and such breach is not cured within twenty (20) days after written notice thereof is received by the breaching party; or (b) if the other party commits any irremediable breach of this Agreement or repeats any breach as has previously been the subject of a notice under paragraph (a) above.
13.4 If either party goes bankrupt or ceases to operate for some other reason, the other party may terminate this Agreement with immediate effect unless the provisions of applicable insolvency laws prevent such termination. If, under applicable insolvency laws, the bankruptcy estate is entitled to become a party to this Agreement, the estate must notify the other party in writing of whether it wishes to become a party to this Agreement. Such notice must be given within five (5) business days after a request has been made to that effect. If either party files for a suspension of payments, or if it commences negotiations for a compulsory composition with creditors, or if it turns out that, as a result of the party’s financial situation, it is unlikely to be able to perform this Agreement, the other party may terminate this Agreement with immediate effect.
13.5 If You commit a material breach of this Agreement (including non-payment of fees), Sefaira is entitled to disable Your access to the Service until the breach is remedied, provided that We give You notice of the details of such breach. You will continue to be charged for the Charges during any period of suspension.
13.6 Upon termination of this Agreement:
(a) You shall promptly pay Us for all Services delivered up to the effective date of termination at the agreed upon Charges;
(b) You shall promptly discontinue use of the Service and uninstall and discontinue use of any Software affected by such termination and promptly certify to Us that You have discontinued use of and returned or destroyed all copies of the affected Software then in Your possession, including all documentation related thereto; and
(c) those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Section 5 (Your Obligations), Section 6 (Intellectual Property Rights), Section 7 (Charges, Expenses, Payment and Refunds), Section 9 (Confidentiality), Section 10.2-10.3 (Disclaimers and Exclusions of Warranties), Section 11 (Limitation of Liability), Section 12 (Indemnification), and Sections 13 through 26, which will survive any termination of this Agreement to protect the parties.
14. Force Majeure
14.1 Neither party will be liable to the other party for its inability or failure to perform, or delay in performing, any obligations under this Agreement caused by a Force Majeure Event. The party affected by the Force Majeure Event will notify the other party once its performance of its obligations under this Agreement is no longer prevented due to the Force Majeure Event.
15.1 Any omission to exercise, or delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of that, or any other, right or remedy. The waiver by any party to this Agreement of any of its rights or remedies arising under this Agreement or by law shall not constitute a continuing waiver of that right or remedy or a waiver of any other right or remedy.
16.1 If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired. If any provision of this Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
17. Independent Contractors; No Partnership
17.1 Sefaira and Customer shall be independent contractors and nothing in this Agreement is intended to or shall be construed as establishing or implying any partnership, joint venture or agency of any kind between the parties, and nothing in this Agreement shall be deemed to constitute any party as the agent of any other party. No party shall have any authority to act in the name of, or on behalf of, or otherwise to commit or bind any other party in any way whatsoever (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. Promotion and publicity
18.1 Both You and We may reference the fact that You are a Customer of Ours and each party hereby grants to the other party the right to publish, use, reference, and display the other party’s name and other information, provided that any referential use of marks complies with the respective party’s external posted trademark guidelines. Specifically, You agree that We may use your company name and logo as a customer on Our Website and in marketing collateral.
18.2 Following successful use of Our Service, We may request the right to create a written case study of Your use of the Service and You agree that permission for such activity shall not be unreasonably withheld.
19. Amendments; Entire Agreement
19.1 From time to time, Sefaira may amend this Master Subscription Agreement. If Sefaira amends this Master Subscription Agreement, Sefaira will inform you by posting the amended Master Subscription Agreement on the Website. Those changes will go into effect on the Revision Date shown in the amended Master Subscription Agreement. By continuing to use the Service, you agree to the amended Master Subscription Agreement.
19.2 This Agreement, together with the any Order Forms entered into by the parties, contains the entire agreement between the parties with respect to its subject matter. Each of the parties acknowledges and agrees that it has not entered into this Agreement in reliance on any statement or representation of any person (whether a party to this Agreement or not) other than as expressly incorporated in this Agreement. Each of the parties irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Agreement by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in this Agreement.
20.1 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 (not to be unreasonably withheld). Notwithstanding the foregoing, Sefaira may assign this Agreement in its entirety, without consent of Customer, (i) at any time, to any Affiliate of Sefaira, or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
21. No Third Party Rights or Benefits
This Agreement is solely for the benefit of, and enforceable by, the parties hereto. This Agreement does not confer any rights or benefits on, and is not enforceable by, any third person or party. As set forth in Section 7.8 above, for any Contracting Group, only the Contracting Company shall be entitled to enforce this Agreement.
22.1 Any notice to be given under this Agreement must be in writing, in English and may be served by hand delivery at, or by pre-paid first class post, recorded delivery or registered post to the address of the receiving party as set out at the beginning of this Agreement or by fax to any fax number notified by any party to the other party for the purposes of this Agreement. Any notice served in accordance with Section 22.1 shall be deemed to have been received:
(a) if delivered by hand, at the time of delivery;
(b) if sent by pre-paid first class post, recorded delivery or registered post, at 1.00 p.m. local time on the fifth clear day after the date of posting; or
(c) if sent by fax, upon the sender receiving electronic confirmation that the fax was received by the other party.
22.2 If, under the provisions of Section 22.1, a notice would be deemed to have been received outside normal business hours, being 9.30 am to 5.30 pm local time on any day which is not a Saturday, Sunday or public holiday in the place of receipt (which, in the case of service on any party by fax shall be deemed to be the same place as the address specified for service on that party by post), it shall instead be deemed to have been received at the recommencement of such normal business hours.
23. Who You Are Contracting With; Governing Law and Jurisdiction; Remedies
23.1 Who You are contracting with under this Agreement, to whom You should direct notices under this Agreement, which law will apply in any lawsuit arising out of this Agreement, and which courts can adjudicate any such lawsuit, depend upon where You are domiciled.
If You are domiciled in:
You are contracting with:
Notices should be addressed to:
The governing law is:
The courts having exclusive jurisdiction are:
The United States of America or Canada
Chief Financial Officer
|New York and controlling United States Federal Law||New York, NY, USA|
Any other jurisdiction
Sefaira UK Ltd, a company incorporated in England and Wales with company number 7001997
Chief Financial Officer
|England and Wales||England|
23.2 The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement.
23.3 Customer acknowledges that any breach or violation by Customer of this Agreement may cause irreparable harm to Sefaira, for which money damages would be inadequate, and accordingly, Sefaira shall be entitled to seek equitable and injunctive relief in any court of competent jurisdiction to restrain such violation, without the need to post a bond or other collateral or prove special damages.
24. Arbitration Agreement
24.1 All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules“) by one arbitrator appointed in accordance with the ICC Rules. For Customers and Users in Europe, the Middle East, Africa, Asia, the Pacific, South America and elsewhere outside of the United States and Canada, the place of arbitration will be London, England. For Customers and Users in the United States or Canada, the place of arbitration will be New York City, New York, United States of America. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The language used in the arbitration, including the language of the proceedings, the language of the decision, and the language of all written statements of the reasons supporting it, shall be English. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. This arbitration provision shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
25.1 During the term of this Agreement, You shall not recruit, solicit or hire for employment or as an independent contractor, any Sefaira employee, or induce or attempt to induce a Sefaira Employee to terminate his or her employment with Us.
26.1 Except where a different interpretation is necessary in the context, the words and expressions set out below shall have the following meanings:
|“Affiliate”||means, with respect to a certain person or entity (e.g. Sefaira), any person or entity that, directly or indirectly, Controls, is Controlled by, or is under Common Control as, such person or entity (e.g. Sefaira).|
|“API“||means Sefaira’s Application Programming Interface, only accessible via explicit agreement.|
|“Charges“||means the charges due from You for use of the Service, as detailed in the Order Form;|
|“Contracting Group”||Has the meaning given in Section 7.7|
|“Control” (including the correlative meanings of the terms Controlling, Controlled by and under common Control with)||as used with respect to a certain person or entity, means (i) the record or beneficial ownership, directly or indirectly, of stakes in the corporate capital, securities or other financial instruments, entitling the exercise in the aggregate of more than 50% of the voting rights in such person/entity, or (ii) the possession of the power to, directly or indirectly, elect a majority of the board of directors (or equivalent governing body) of such person/entity, whether through ownership of stakes in the corporate capital, securities or other financial instruments, through contract or otherwise, or (iii) the possession of the power to, directly or indirectly, direct or cause the direction of the management and policies of or with respect to such person/entity, whether through ownership of stakes in the corporate capital, securities or other financial instruments, through contract or otherwise.|
|“Customer Data“||means the data inputted or uploaded by or on Your behalf for the purpose of Your use of the Software or Service.|
|“Customer Data Loss”||means any temporary unavailability, permanent destruction or irretrievability of the Customer Data, and/or any corruption or damage to the Customer Data as well as any breach, leak, misappropriation by third-parties of the Customer Data or any other loss thereof, of any kind, and for whatever reason, irrespective of whether or not such loss: (a) arises out of accidental or deliberate events or actions, including without limitation failures in the storage, transmission, or processing of the Customer Data (e.g., hard-disk crashes, malfunctions of the back-up system), software bugs or errors, and intentional actions by third-parties, such as, without limitation, theft and hacking attacks; or (b) relates to confidential, sensitive or any other kind of information.|
|“Force Majeure Event”||includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (a) strikes, lock-outs or other industrial action; (b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (e) impossibility of the use of public or private telecommunications networks; and (f) the acts, decrees, legislation, orders, regulations or restrictions of any government.|
|“Intellectual Property Rights”||means any and all intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals or other documentation, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites (including the Website).|
|“Order Form”||means the order form provided by Sefaira, either online or offline, that specifies the applicable Service, Charges, and other terms and conditions that govern Your use of the Service that, when accepted by both Sefaira and You, is automatically incorporated into this Agreement by reference and creates a binding contract between the parties.|
|“Renewal Price”||means the Charges for each subsequent renewal period, as such Charges may be agreed between the Parties and amended from time to time. In the absence of any such specifically agreed Renewal Price, the Renewal Price shall be the then-current list price for the Service.|
|“Support”||are services that enable You to get the most value out of the Service, by providing help, training and other services that improve the way You use the Service. Support Services are delivered at Your premises or remotely, in person or via electronic means of communication, including the Support Service embedded directly in the Software.|
|“Users”||Means individuals who are authorized by You to use the Service, 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).|
|“We”, “Us” or “Our”||Means the Sefaira company described in Section 23 (Who You Are Contracting With)|
|“Website”||means www.sefaira.com or any related sub-domain of sefaira.com, including, but not limited to, apps.sefaira.com.|
26.2 The section, paragraph and Schedule headings and the table of contents used in this Agreement are inserted for ease of reference only and shall not affect construction.
26.3 References to persons shall include bodies corporate, unincorporated associations, limited liability companies, trusts, partnerships and governmental entities, in each case whether or not having a separate legal personality.
26.4 References to the word “include” or “including” (or any similar term) are not to be construed as implying any limitation and general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded or followed by words indicating a particular class of acts, matters or things.
26.5 Except where the context specifically requires otherwise, words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part.
YOU REPRESENT AND WARRANTY THAT YOU HAVE READ THE TERMS ABOVE AND ACKNOWLEDGE THAT BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THEM. PLEASE PRINT A COPY OF THIS AGREEMENT AND THE ORDER FORM FOR YOUR RECORDS AND CHECK THE WEBSITE OFTEN FOR CHANGES.