This Master Subscription Service License Agreement (Agreement) governs your purchase of the Services and ongoing use thereof as defined herein.
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT ("EULA").
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 You may not use the Software Services.
1. License Grant & Restrictions
The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Service is licensed, not sold. This EULA grants you the following rights:
Company hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Company and its licensors.
You may not access the Service if you are a direct competitor of Company, except with Company's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not publish any information regarding the Software or your use without prior written approval of Company.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service, its UX or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a commercial or competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and you shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate any third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan Horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
2. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, provincial or state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Company immediately and use reasonable efforts to stop immediately any copying or distribution of Content by you or your Users; and (iii) not impersonate another User or provide false identity information to gain access to or use the Service. You agree that you will comply with all applicable laws and regulations in connection with your use of the Services, including but not limited to, all applicable privacy and export control laws and regulations. You acknowledge that the Services are subject to U.S. export control laws and regulations and you represent that you are not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. You represent that you are not an individual less than 18 years of age. There is no PII data within the system that requires HIPAA or other protections.
3. Intellectual Property Ownership
Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Company Technology, the Content and the Service including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Company Technology or the Intellectual Property Rights owned by Company. The Company name, the Company logo, and the product names associated with the Service are trademarks of Company or third parties, and no right or license is granted to use them.
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 Customer Data; Company Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, 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 Customer 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.
Except as otherwise permitted in writing by the Disclosing Party, (i) 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its 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.
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 Partys 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.
5. Account Information and Data
Company does not own the Customer Data. You, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. You acknowledge that a premium service (similar to www.amazon.com or Digital Ocean Inc., ) and not Company, stores Your Customer Data. In the event this Agreement is terminated or lapses for any reason we will provide email notification of the lapse and if it is not corrected within five (5) business days; (1) your right to access or use Customer Data via the Service ceases; and (2) it will not be Companys responsibility to make available to you a file of the Customer Data upon termination. Company may use Customer Data in aggregate with other Customers Data) to better understand the use of the Services and to further develop and improve the Software. Any posts, collaboration, user feedback, survey data, or social posts on a MobiTen site or within the Service that mention YuGen, Yugenware, or MobiTen shall be owned by Company.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. Company does not endorse any sites on the Internet that are linked through the Service. Company provides these links to you only as a matter of convenience, and in no event shall Company or its licensors be responsible for any content, products, or other materials on or available from such sites. Company provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
7. Fees and Payment for Purchased Services
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms at the time a fee or charge is due and payable (Fees) or as stated on the applicable Order Form. Except as otherwise specified herein, (i) Fees are quoted and payable in United States dollars, (ii) Fees are based on Services purchased and not actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on monthly or yearly periods that begin on the Effective Date and each monthly or yearly anniversary thereof (Billing Period). Fees for User subscriptions added during a subscription Service period will be prorated for the remaining time of the Subscription Service period in which they were purchased.
You will provide Company with valid and updated credit card information or information for a Company accepted Payment Method, including ACH, EFT or Check. You authorize Company to charge the Payment Method for all Services You purchase for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance for the upcoming Billing Period. You are responsible for maintaining complete and accurate billing and contact information for the Services on the portal.
Unless otherwise stated, 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"). Fees do not include foreign currency exchange fees levied by any financial institution in connection with non-U.S. dollar payments for the Service from You to the Company ("Foreign Exchange Fees"). You are responsible for paying all Taxes and Foreign Exchange Fees associated with Your purchases hereunder. If Company has the legal obligation to pay or collect Taxes or pay Foreign Exchange Fees for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You. You shall be exempt from such Taxes if You provide Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on Companys income, property and employees.
Company reserves the right to modify its fees and charges and to introduce new charges and additional Services at any time, upon at least 30 days prior notice, as specified in Section 16 below, to Customer, effective upon the next Renewal Term in accordance with Section 10 below, except that new Services shall be invoiced upon a signed Order Form and prorated to the end of the current Term. In the event that Customer does not cancel as described in Section 10 below, such changes shall become effective at the commencement of the renewal term. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release.
8. Non-Payment and Suspension
In addition to any other rights granted to Company herein, Company reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). You agree that Company may charge unpaid Fees to your Payment Method registered with Company or otherwise bill you for such unpaid Fees. Company reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service.
9. Term and Termination
This Agreement commences on the Effective Date, shown on the applicable Order Form, and continues until all User subscriptions granted in accordance with this Agreement have expired or are 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 provided an Order Form has not been signed.
User subscriptions purchased by You commence on the Effective Date of this Agreement and continue for the subscription term specified at the time of purchase. All User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice, as specified in Section 16, of non-renewal at least 15 days before the end of the relevant subscription term, this shall not pertain to evaluation or free trial period offers which shall end on the date stated on the Order Form. For trial or evaluation at the end of the Term the Service must be subscribed to for a term not less than one year on a separate Order Form to continue its use. No data is saved for an unsubscribed trial or evaluation user who does not enter into a continuation Order Form. The pricing during any such renewal term shall be the same as that during the prior term unless Company has given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
Section 4 (Intellectual Property Ownership), 5 (Confidentiality), 8 (Fees and Payment for Purchased Services), 9 (Non-Payment and Suspension), 11 (Representations & Warranties), 12 (Mutual Indemnification), 13 (Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Notices), 18 (Agreement to Governing Law and Jurisdiction), 19 (Waiver of Jury Trial), and 20 (General Provisions) shall survive any termination or expiration of this Agreement.
10. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Company represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Company, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that Company (a) gives written notice of the claim to you, and (b) gives you control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Company of all liability and such settlement does not affect Company's business or Service).
12. Disclaimer of Warranties
COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY AND ITS LICENSORS.
13. Internet Delays
COMPANY'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
14. Limitation of Liability
EXCEPT FOR INFRINGEMENT CLAIMS, COMPANY SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO COMPANIES OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTIES INDEMNIFICATION CLAIMS EXCEED EITHER $1MM OR THREE TIMES THE FEES PAID BY CUSTOMER TO COMPANY IN THE LAST TWELVE MONTHS PRECEDING CLAIM, WHICHEVER IS GREATER.
Company may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Company's account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Company's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 24 hours after sending (if sent by email). You may give notice to Company (such notice shall be deemed given when received by Company) at any time by any of the following: email sent to email@example.com; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Company at the head office location specified at www.ngnine.io.
Customer grants Company the right to use Customers name, mark and logo on Companys website, in Company marketing materials, and to identify Customer as a Company Customer. Any such use other than that described above or on an applicable order formmust be pre-approved by Customer, such approval shall not to be unreasonably withheld, and will be provided in writing by Customer.
17. Agreement to Governing Law and Jurisdiction
The Agreement is governed by the laws of the State of Washington, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The United Nations Convention on the International Sale of Goods shall not govern this Agreement. Each of us agrees that we will not bring a claim under the Agreement more than one year after the time that the claim accrued.
18. 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.
19. General Provisions
19.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
19.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties, and neither party shall have the authority to bind the other party.
19.3. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
19.4. 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.
19.5. 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 (not to be unreasonably withheld).
19.6. Entire Agreement. This Agreement, including all exhibits, Order Forms, and addenda hereto, 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, the terms of such exhibit or addendum shall prevail.