Terms of Service
WHEREOWARE, LLC (“WHEREOWARE) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR OTHER LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO ONE OR MORE ORDER FORMS, SALES ORDERS, STATEMENTS OF WORK, REGISTRATION FORMS OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM3”) WITH WHEREOWARE THAT REFERENCES THESE TERMS OF SERVICE, ONLY ON THE CONDITION THAT YOU ACCEPT THESE TERMS OF SERVICE. READ THESE TERMS OF SERVICE CAREFULLY BEFORE PURCHASING ANY SERVICES FROM WHEREOWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND WHEREOWARE. BY EITHER (A) CLICKING THE "ACCEPT" BUTTON BELOW (OR ANY SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED BY WHEREOWARE TO SHOW YOUR ACCEPTANCE OF THESE TERMS OF SERVICE) OR BY (B) ENTERING INTO AN ORDER FORM WITH WHEREOWARE THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THESE TERMS OF SERVICE AND ALL ORDER FORMS ARE COLLECTIVELY REFERRED TO HEREIN AS THE “AGREEMENT”.
IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOLWEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
YOU MAY NOT USE OR ACCESS PRODUCT FASTLANE (AS DEFINED BELOW) IF YOU ARE A DIRECT COMPETITOR OF WHEREOWARE. YOU AGREE TO INDEMNIFY WHEREOWARE AND HOLD WHEREOWARE HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, COSTS, LIABILITIES, EXPENSES AND CLAIMS INCURRED BY WHEREOWARE AS A RESULT OF ANY BREACH OF THIS AGREEMENT.
Whereoware is the provider of a hosted product content management platform and related software tools and services that can be used to collaboratively integrate, manage, enhance, clean, share, and publish product content, digital assets, and related information ("Product FastLane") across the supply chain. Customer desires a subscription to access and use Product FastLane in accordance with the terms and conditions set forth herein.
2. Access and Use; Restriction; Services
2.1 Access and Use. Subject to the terms and conditions of this Agreement and any additional restrictions, terms or conditions set forth on the applicable Order Form, Whereoware hereby grants Customer a non-exclusive, non-transferable (except as otherwise expressly set forth in Section 10.3 below) and non-sublicensable right to access and use Product FastLane solely for Customer's own business purposes and solely for the duration of the applicable Subscription Term. Customer may not access Product FastLane if it is a competitor of Whereoware.
If expressly permitted in an Order Form, Customer may make Product FastLane available to its Affiliates provided that that Customer ensures that such Affiliate complies with this Agreement and Customer is liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. For purposes of this Agreement an “Affiliate” shall mean any corporation, partnership or other entity that directly or indirectly controls, is controlled by or under common control with Customer and that is expressly identified on the applicable Order Form.
2.2 Restrictions. Except as provided herein, the access rights granted in Section 2.1 are granted to Customer subject to the following restrictions: (a) that Product FastLane will be accessed and used only by Customer's Authorized Users; (b) Customer will not, and will require that its Authorized Users do not: (i) reproduce, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or time share Product FastLane or otherwise commercially exploit or make Product FastLane or any portion thereof available to any third party, other than as expressly permitted by this Agreement; (ii) intentionally or knowingly interfere with or disrupt the integrity or performance of Product FastLane or the data contained therein, including by introducing viruses, worms, harmful code and/or Trojan horses on or in Product FastLane or the Internet; (iii) intentionally attempt to gain unauthorized access to or unduly burden the network capacity of Product FastLane or its related systems or networks; (iv) access or attempt to access (through password mining or any other means) other accounts hosted by Product FastLane or other computer systems or networks not covered by this Agreement, for which Customer does not have permission from Whereoware to access; (v) access or use Product FastLane in a way intended to avoid incurring fees or hiding usage that exceeds usage limits or quotas if any; (vi) remove, obscure or alter any proprietary right notice related to or contained in Product FastLane; (vii) use Product FastLane to send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages; (viii) use or monitor Product FastLane’s availability, performance, or functionality for any competitive purpose; or (ix) use Product FastLane in any manner or for any purpose other than as expressly permitted by this Agreement; and (c) Customer will not, and will require that its Authorized Users do not, use Product FastLane to upload, post, store, distribute, transmit, sell, promote or provide any products, services, Customer Content (as defined below), information, data or other material that (i) includes any “Sensitive Personal Information”; (ii) is defamatory, libelous, threatening, harassing, illegal to store or transmit or otherwise inappropriate; (iii) encourages any conduct that could constitute a criminal offense; or (iv) that violates or infringes the intellectual property rights or rights to the publicity or privacy of others. For purposes of the foregoing, “Sensitive Personal Information” means any personal information that requires additional protection under applicable data protection laws as a result of its sensitive nature, including, without limitation, information concerning an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, physical or mental health, sex life or orientation, criminal records, financial account numbers, account passwords or voice mail access codes, medical records, biometric information, date of birth and government-issued identification numbers (such as U.S. Social Security numbers or other insurance or identification numbers, driver's license numbers, and passport numbers).
2.3 Authorized Users. For purposes of this Agreement, "Authorized Users" means employees, or other approved contractors of Customer (or its permitted Affiliates as described in Section 2.1 above) who are authorized by Customer to access and use Product FastLane using a user ID such as an email provided by Customer.
2.4 Services. From time to time, Customer may request Whereoware to provide certain professional services. If Whereoware agrees to perform any such professional services for Customer, then such professional services (the "Services") will be described in a mutually agreed upon statement of work that references this Agreement ("Statement of Work"), and the fees and other terms for such Services will be as agreed to by the parties in the applicable Statement of Work.
2.5 Reservation of Rights; Acknowledgement of Ownership. Product FastLane contains proprietary information, materials and content including, but not limited to, copyrighted material, trademarks, service marks, and other proprietary information; which may include (without limitation): text, software, photographs, video, graphics, interactive elements, images, and sounds that are owned by Whereoware and/or its licensors (collectively "Whereoware Materials") and are protected by applicable intellectual property and other laws including, but not limited to, copyright and trade secrets. Customer agrees that such Whereoware Materials will not be used in any way other than in compliance with the terms of this Agreement. Subject only to the rights expressly granted to Customer under this Agreement and except for any Customer Content (as defined below), all rights, title, and interest in and to Product FastLane, Whereoware Materials, and all modifications, enhancements, and improvements thereof will remain with and belong exclusively to Whereoware.
2.6 Whereoware Materials. Notwithstanding any other provision of this Agreement, Whereoware and its licensors reserve the right to enhance, change, suspend, remove or disable access to any Whereoware Materials, particular functions or other materials comprising a part of Product FastLane at any time. By way of example, Whereoware’s engineering team may provide updates to Product FastLane in an effort to improve performance and to introduce new or enhanced features and functionality. In the event, however, that such changes will reasonably be deemed to materially and adversely affect the overall functionality of Product FastLane and no workaround is reasonably available, then Customer may notify Whereoware that it intends to terminate its subscription to Product FastLane. If upon receiving Customer’s notice Whereoware fails to remove such adverse changes and restore the functionality to Product FastLane or substantially cure the material and adverse effect to the overall functionality within thirty (30) days of receiving Customer’s notice then Customer may as its sole remedy, elect to terminate its subscription to Product FastLane upon written notice to Whereoware (in which case Customer shall be entitled to receive a refund of any prepaid, unused fees paid in advance for the balance of the unexpired Subscription Term). Whereoware may also set limits on the use of or access to certain features, functions or portions of Product FastLane upon notice to Customer provided that such limits, if material, shall not be effective until any renewal of Customer’s subscription to Product FastLane.
2.7 Customer Content. As between Customer and Whereoware, Customer will own all content, text, graphics, photos, audio, video material, and materials, in both its altered or unaltered form, provided by Customer to Whereoware in connection with its use of Product FastLane under this Agreement ("Customer Content"). Customer acknowledges that one primary function of Product FastLane is to allow Customer to transmit and distribute its Customer Content to third parties through Product FastLane. Accordingly, during the Subscription Term, Customer acknowledges that Whereoware may use, store copy, modify, and transmit the Customer Content as reasonably necessary or desirable to provide Product FastLane and its related services to Customer
2.8 Feedback. Whereoware appreciates the feedback that it receives from its customers with respect to Product FastLane. Customer acknowledges and agrees that Customer will gain no right, title, or interest in or to Product FastLane or any other products or services (other than as licensed pursuant to this Agreement) by virtue of any questions, comments, suggestions, ideas, feedback or other information about Product FastLane ("Feedback"), provided by Customer to Whereoware, and Whereoware will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to Customer. Customer agrees that it does not now have, will not have, nor will it ever claim, any proprietary rights (including intellectual property rights and trade secret rights) in or to the Feedback, Product FastLane and/or the other services and products offered. If Customer is ever held or deemed to hold any right, title or interest in or to Product FastLane(including any changes, modifications or corrections thereto), other services and products, and/or the Feedback, then Customer hereby irrevocably assigns to Whereoware all such right, title and interest. Customer shall insure that its Authorized Users do not gain any rights to Product FastLane, the Feedback or any intellectual property of Whereoware.
2.10 Third Party Service Providers. One primary feature of Product FastLane is that Product FastLane may use and/or provide access to a third party's (e.g. Amazon, Walmart, Google, etc.) website properties and services, for example to enable Customer to publish Customer Content to a third-party site or service. Because Whereoware has no control over such sites and services, the parties acknowledge and agree that: (i) the manner in which third party services use, store and disclose Customer Content is governed solely by the policies of such third parties; (ii) Whereoware is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with third party sites or services; (iii) Whereoware shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled via Product FastLane; and (iv) Whereoware enables these features merely as a convenience and does not endorse and is not responsible or liable for any content, advertising, events, products, or other materials on or available from such sites or services. The parties further acknowledge and agree that Whereoware shall not be responsible or liable, directly or indirectly, for any damage or loss, including bodily harm or death, caused or alleged to be caused by or in connection with use of or reliance on any such content, events, activities, goods or services available on or through any such third-party sites or services. To the extent that Product FastLane connects to other third-party applications, Customer agrees to comply with all terms and conditions of use for those services that are applicable to Customer's use thereof provided such terms and conditions are made available to Customer in advance.
3. Availability; Support
3.1 Service Level Agreement. Whereoware shall use commercially reasonable efforts to ensure that that Product FastLane is generally available 99.5% of the time in a calendar month during the Subscription Term (i.e. will serve content from Whereoware’s hosting facility 99.5% of the time).
General availability will be calculated per calendar month, as follows:
[((total - nonexcluded - excluded) / (total - excluded)) * 100] ≥ 99.5%
In the event that Whereoware fails to maintain or experiences interruption in access to Product FastLane below 99.5% general availability in any given month, Whereoware's sole liability and Customer's sole and exclusive remedy will be for Whereoware to provide a credit based on the availability level achieved (or, in the case of a non-renewal, a refund for such month based on the availability level below), but Customer must notify Whereoware of such breach within 7 days of the end of the month in question by emailing support@Whereoware.com. To be eligible, the credit request must include: (i) the words "SLA Credit Request" in the subject line; and (ii) the dates and times of each interruption in service that Customer is claiming.
To assist Customer in tracking Whereoware updates, Customer may subscribe to all Product FastLane status notifications at http://status.Whereoware.com/.
General availability to credit of fees paid (prorated to month):
For the avoidance of doubt, general availability is determined on a monthly payment, and any refund or credit is based upon the amount paid for the relevant subscription for such month. No refund or credit shall be due if Customer is in breach of this Agreement.
3.2 Backups. Customer Content is backed up regularly as protection against accidental or intentional data destruction. Should such accidental or intentional data destruction occur, Whereoware will use reasonably efforts to retrieve such data, provided, however, that if such data destruction is not due to Whereoware’s actions, such retrieval efforts shall be billed to Customer at Whereoware’s standard rate for such services.
4. Fees; Fulfillment; Payment Terms
4.1 Fees; Payment Terms. In exchange for Customer's access and use of Product FastLane provided by Whereoware as set forth herein, Customer will pay Whereoware the fees set forth in any applicable Order Form. Whereoware reserves the right to modify pricing prior to the commencement of any Renewal Term (as defined below). Failure to pay any fees under this Agreement may result in an interruption of service at Whereoware’s election.
4.2 Payment Terms. Except as otherwise expressly set forth on an Order Form, all fees and payments under this Agreement will be billed in advance on a monthly or an annual basis as designated in an Order Form and, except as expressly set forth herein, are non-refundable. All payments will be made in U.S. dollars by Credit Card, ACH bank transfer or check, without any withholding, deduction, offset, setoff or other charge, and are due thirty (30) days after the date of Customer’s receipt of the invoice. Customer is responsible for providing information to complete payment, such as valid and updated bank account information.
4.3 Net of Taxes. All amounts payable by Customer to Whereoware hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Whereoware. Customer will not withhold any Taxes from any amounts due Whereoware.
5.1 As used herein, "Confidential Information" means any and all information or data, regardless of whether it is in tangible form, disclosed by either party (the "Disclosing Party") that reasonably should be known to be confidential or proprietary, or that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the "Receiving Party"), or that the Receiving Party would reasonably expect to be treated as confidential information, provided, however, that personally identifiable information of or about Customer or its Authorized Users will be considered the Confidential Information of Customer and all Whereoware Materials will be considered Confidential Information of Whereoware, whether or not such information or materials are marked as confidential or proprietary. Information and data will not be deemed "Confidential Information" if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.
5.2 The Receiving Party agrees that it will not (i) use any Confidential Information of the Disclosing Party in any way, for its own account or the account of any third party, except as allowed under this Agreement, or (ii) disclose any such Confidential Information to any person or entity, other than furnishing such Confidential Information to (a) its Authorized Users, employees, and independent contractors who have a need to know such information in connection with the exercise of Receiving Party's rights or performance of its obligations under this Agreement and (b) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such Authorized Users, employees, and independent contractors and professional advisers are bound by confidentiality obligations or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in accordance with the terms and conditions of this Section 5. The Receiving Party agrees that it will not allow any unauthorized person access to Disclosing Party's Confidential Information, and that Receiving Party will treat the Disclosing Party’s Confidential Information with the same degree of care it treats its own Confidential Information, but no less than reasonable care. In the event that the Receiving Party is required by law to make any disclosure of any of Disclosing Party's Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party, at the Disclosing Party's sole expense, in seeking to obtain such protection. The provisions of this Section 5 shall survive the expiration or termination of this Agreement for a period of three (3) years.
6. Representations, Warranties, and Exclusions
6.1 Representations and Warranties. Whereoware represents and warrants to Customer that during the term of any applicable Order Form for Product FastLane, Product FastLane will conform, in all material respects, with any Whereoware provided user documentation and any other specifications set forth on such Order Form. Each party represents and warrants to the other party that such party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder, and that such party will comply with all federal, state, local and foreign laws, rules and regulations applicable to its performance of obligations or exercise of rights under this Agreement. Whereoware is not responsible for examining or evaluating the content or accuracy of any Customer Content or third-party materials or websites, does not warrant or endorse, does not assume, and will not have any liability or responsibility for any such Customer Content or third-party materials or websites or for any other materials, products, or services of third parties.
6.2 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRODUCT FASTLANE AND ALL SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND AND WHEREOWARE AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HERIN, CUSTOMER ACKNOWLEDGES THAT WHEREOWARE DOES NOT WARRANT THAT PRODUCT FASTLANE WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION , OR THAT PRODUCT FASTLANE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, OR THAT PRODUCT FASTLANE WILL BE ACCURATE, COMPLETE, SUFFICIENT, OR ADEQUATE TO MEET CUSTOMER'S AND ITS AUTHORIZED USERS' REQUIREMENTS OR NEEDS.
7.1 Indemnification by Whereoware. In the event of a claim against Customer for the infringement or misappropriation of a third party copyright, trade secret or trademark by reason of the use of Product FastLane (other than with respect to the Customer Content or third-party software) by Customer as permitted hereunder, Whereoware will, at its expense, defend, indemnify and otherwise hold Customer harmless from such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Whereoware for such defense, provided that (i) Customer promptly notifies Whereoware in writing of such claim, (ii) Whereoware is given the sole and exclusive authority to defend and/or settle any such claim (provided that Customer may participate in the defense or settlement of such claims at its own expense and with its own counsel), and (iii) Customer reasonably cooperates with Whereoware, at Whereoware's sole expense, in connection therewith. If the use of Product FastLane by Customer has become, or in Whereoware's opinion is likely to become, the subject of any claim of infringement, Whereoware may at its option and expense (a) procure for Customer the right to continue using Product FastLane as set forth hereunder; (b) replace or modify the infringing component of Product FastLane to make it non-infringing so long as Product FastLane has comparable functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement and provide Customer with a refund of any prepaid, unused fees paid to Whereoware by Customer for Product FastLane(if any) for any unexpired portion of the Subscription Term. Whereoware will have no liability or obligation under this Section 7.1 with respect to any claim to the extent such claim is caused in whole or in part by (x) Whereoware's use of any Customer Content, compliance with designs, data, instructions or specifications provided by Customer; or (y) the combination, operation or use of Product FastLane with other applications, software, content, products, data or services not provided by Whereoware where Product FastLane would not by itself be infringing.
7.2 Indemnification by Customer. Customer will, at its expense, defend, indemnify and otherwise hold Whereoware and its affiliates harmless from and against any and all claims directly or indirectly brought against Whereoware or any of its affiliates by any third party arising from (i) any use of Product FastLane by Customer, Authorized Users, or any other person or entity authorized by Customer, which use is in violation of the terms of this Agreement, or (ii) claims for the infringement or misappropriation of a third party copyright, trade secret or trademark by reason of the use of the Customer Content as authorized under this Agreement or for use of Product FastLane other than as described herein. Customer will pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Customer for such defense; provided that: (a) Whereoware promptly notifies Customer in writing of such claim, (b) Customer is given the sole and exclusive authority to defend and/or settle any such claim (provided that Whereoware may participate in the defense or settlement of such claims at its own expense and with its own counsel) and (c) Whereoware reasonably cooperates with Customer, at Customer's sole expense, in connection therewith.
8. Limitation of Liability
EXCEPT FOR A BREACH BY A PARTY OF ITS OBLIGATIONS IN SECTION 5 (CONFIDENTIALITY), LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, OR ANY VIOLATION BY CUSTOMER OF ANY OF WHEREOWARE’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING, BUT NOT LIMITED TO, PRODUCT FASTLANE, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR INSUFFICIENCIES IN PRODUCT FASTLANE, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR A BREACH BY A PARTY OF ITS OBLIGATIONS IN SECTION 5 (CONFIDENTIALITY), ANY VIOLATION BY CUSTOMER OF ANY OF WHEREOWARE'S INTELLECTUAL PROPERTY RIGHTS, INCLUDING, BUT NOT LIMITED TO, PRODUCT FASTLANE OR A PARTIES' LIABILITY ARISING UNDER ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE MONTHLY OR ANNUAL SUBSCRIPTION FEES PAID OR PROPERLY PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE THE PARTY'S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9. Term, Termination
9.1 Term. The initial term of the Customer's subscription will commence and continue for the period set forth in the applicable Order Form (the "Initial Term"). Thereafter, unless otherwise expressly set forth on such Order Form, the term of Customer's subscription and this Agreement will automatically renew for successive periods of the same term set forth in the Order Form (each, a "Renewal Term" and, together with the Initial Term, the "Subscription Term"). Either party may prevent an automatic renewal by notifying the other party in writing no less than thirty (30) days prior to the end of the then current Subscription Term of its election not to renew the Subscription Term.
9.2 Termination. Either party may terminate this Agreement or any Order Form upon written notice to the other party in the event the other party commits any material breach of this Agreement or such Order Form and fails to cure such breach within thirty (30) days (5 days for non-payment) after written notice of such breach. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms.
9.3 Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of Whereoware to provide Product FastLane will immediately terminate and the parties will return any Confidential Information of the other party in its possession or control to the other party upon written request, and Customer shall, and shall cause its Authorized Users to, cease all use of Product FastLane. Termination or expiration of this Agreement will not relieve Customer from paying all fees accruing prior to termination or expiration, if any. Except as otherwise expressly set forth in this Agreement, Customer will not receive a refund for any fees paid hereunder. Upon termination, Whereoware will maintain Customer Content for a period of thirty (30) days and, during such period, will deliver such Customer Content to Customer upon request. Customer shall also have the right at any time during the term of this Agreement and for thirty (30) days thereafter to download all Customer Content in Product FastLane via standard export mechanisms – including through Product FastLane interface – in industry standard export formats. After such period, Whereoware will delete such Customer Content and any related information and files in Customer's account. Sections 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 4, 6.2, 7, 8, 9.3, and 10 will survive the termination or expiration of this Agreement for any reason whatsoever.
9.4 Force Majeure. Other than monetary defaults, neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, any change in or the adoption of any law, regulation, judgment or decree or causes occurring without such party's fault or negligence including, but not limited to, by suppliers, subcontractors, carriers or other providers (each a "Force Majeure Event"); provided that financial inability in and of itself will not be a Force Majeure Event.
10.1 Claims. Except for the breach of confidentiality or Customer’s use or misuse of Whereoware’s intellectual property, no claim or action, regardless of form, arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby may be brought by either party more than one (1) year after the events which gave rise to the claim or action become known.
10.2 Export Compliance; Use Restrictions. Certain technology and software components of Product FastLane may be subject to U.S. export control and economic sanctions laws. Customer shall comply strictly with all such laws and regulations as they relate to such technology and software and access and use of Product FastLane. In addition, Customer shall not, and shall cause Authorized Users not to, access or use Product FastLane if Customer or any Authorized User is located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (such jurisdictions, together with all other jurisdictions designated by applicable U.S. export control and economic sanctions laws or regulations promulgated thereunder, are collectively referred to as the "Prohibited Jurisdictions"), and neither Customer nor any Authorized User shall provide access to Product FastLane to any government, entity or individual located in the Prohibited Jurisdictions, any individual identified on the Bureau of Industry and Security's Denied Persons List or the Office of Foreign Assets Control's Specially Designated Nationals List, or to any entity or individual with knowledge or reason to know that Product FastLane will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.
10.3 No Assignment. Neither party may assign or transfer this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the other party provided that either party may, without consent, assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates provided that Customer does not assign this Agreement to a competitor of Whereoware. Any attempt to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Relationship. Nothing in this Agreement will be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.5 Severability. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
10.6 Governing Law; Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its rules of conflict of laws. Except as otherwise expressly provided on an Order Form, each of the parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Virginia and of the United States of America located in the Eastern District of the Commonwealth of Virginia (the "Virginia Courts") for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Virginia Courts and agrees not to plead or claim in any Virginia Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Virginia Courts.
10.7 Notices. All notices, demands, requests and other communications under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth in the applicable Order Form or such other addresses designated pursuant to this Section 10.7.
10.8 Entire Agreement. This Agreement and any related Order Forms constitute the entire agreement between the parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, invoices, sales acknowledgments or quotations. In the event of any conflict between any term or condition in these Terms and any term or condition in any Order Form, the applicable term in the Order Form will govern. There shall be no force or effect to any additional or different terms of any other related purchase order, invoice or similar form provided by either party on or after the date hereof.
10.9 Publicity. Whereoware may identify Customer as a customer of Whereoware and display Customer's name and logo solely for such purpose on its customer lists, its website, and its marketing and promotional materials provided that Customer may request that Whereoware cease such use at any time upon written notice to Whereoware.