GenePool Subscription Agreement
THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. 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. IN THE EVENT OF ANY CONFLICT BETWEEN THIS SUBSCRIPTION AGREEMENT AND THE STANDARD ELECTRONIC SUBSCRIPTION AGREEMENT, THIS SUBSCRIPTION AGREEMENT (AS AMENDED FROM TIME TO TIME) SHALL GOVERN. 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" OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated January 29, 2016.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Derivative Data” means (a) all data and information created by any User as a result of use of the Services, (b) all data and information prepared by Station X for the Customer in connection with the Services. For the avoidance of doubt, Derivative Data does not include Customer Data, such as BAM, VCF or count files and their associated indices stored by the customer either on the Customer’s own equipment or by a Third Party Data Service.
"Malicious Code" means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Personally Identifiable Information” or “PII” means information that can be used to uniquely identify, contact, or locate a single person or can be used with other sources to uniquely identify a single individual.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form.
"Services" means the GenePool services and other services, data files or content that are ordered by You under a free trial or an Order Form and made available by Us online via the customer login link at http://www.stationxinc.com and/or other web pages designated by Us. At the sole discretion of Station X, the content, functionality and user interface of the Services may be updated from time to time.
“Third Party Data Service” means a third party service used to store Your Data. Station X currently supports integration with a variety of service providers including but not limited to: Amazon Simple Storage Service (AWS s3), Google Cloud Storage, DNAnexus, Seven Bridges Genomics.
“User Guide" means the online user guide for the Services, to be made available and accessible via login at www.stationxinc.com, and/or other web pages designated by Us, as updated from time to time. You acknowledge that You will have the opportunity to review the User Guide, and after You have access to the User Guide Your use of the Services will comply with the User Guide.
"Users" means the named individuals who are authorized by You to use the Services, for whom subscriptions to Services have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents.
"We," "Us," "Our” or “Station X” means the Station X, Inc. "You" or "Your" or “Customer” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" or “Data” or “Customer Data” means electronic data or information, stored by the customer either on Customer equipment or a Third Party Data Service, and submitted by You for import to the Purchased Services and includes: (i) BAM files and associated indices and, (ii) VCF and associated indices, (iii) Count files and (iv) patient or sample data.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. We grant to You a non-exclusive, non-transferable, non-sublicensable license to access and use the Services and/or Purchased Services via the Internet pursuant to this Agreement and the relevant Order Forms during a subscription term, solely for internal research purposes, and not for clinical use or for the clinical diagnosis of any disease or condition.
2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified named Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, unless quoted otherwise by Us, and prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. Unless provided otherwise in the Order Form, the subscription term is one year.
3. USE OF THE SERVICES
3.1. Our Responsibilities. We shall: (i) provide Our support for the Purchased Services to You in accordance with Our Standard Support Services (as amended from time to time) reflected in Exhibit B at no additional charge, and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime whereby Station X will exercise reasonable efforts to perform scheduled system maintenance between the hours of 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time and will make all commercially reasonable efforts to limit the downtime to only the hours necessary to perform the required maintenance. Station X will provide at least 8 hours notice via the Purchased Services or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks. We will make available upgraded support, implementation, configuration or professional services to be purchased separately under another agreement, and (iii) use commercially reasonable efforts to keep the software free of any Malicious Code which would permit access to or use of the Services, Customer Data, Derivative Data or Customer’s or third party computer systems by unauthorized parties, or to disable, damage or erase the Software or any Customer Data or Derivative Data, and (iv) shall maintain a business continuity and a disaster recovery plan in accordance with industry best practice, and shall implement such plans when necessary in accordance with their terms, to ensure that the quality and performance of the Services are maintained at all times.
3.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible to host or arrange third party hosting of Your Data with a vendor approved by Us (Our approval does not constitute an endorsement or make Us responsible for such third party vendor), (iii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired and use Your Data, (iv) be responsible for compliance with all applicable laws and regulations, including the Health Insurance Portability and Accountability Act, in the collection, storage, handling, transfer, use and disclosure of Your Data, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (vi) use the Services only for internal research purposes in accordance with the User Guide and applicable laws and government regulations. You shall NOT (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) allow any user to share their login credentials or API tokens with anyone else, (d) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use the Services to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (g) attempt to gain unauthorized access to the Services or their related systems or networks, or (h) use the Services for any clinical, diagnostic, therapeutic or commercial purposes. You will only use these Services in accordance with applicable law and regulations. You alone are responsible for monitoring the content of and type of Data Your Users use or provide. We have no responsibility to monitor or screen the Data for compliance with any law or regulation or for any other purpose, and We have the right to assume the Data is provided in compliance with laws and regulations. Users importing data from third party sources must adhere to any restrictions or requirements of that third party with respect to the storage, usage and publication of that data.
3.4. Security; Privacy. Customer acknowledges that the use of or connection to the Internet provides opportunity for unauthorized third parties to circumvent any security precautions taken by Us and gain access to the Services, Derivative Data and Your Data. Therefore, Station X cannot and does not guaranty the privacy, security or authenticity of any information transmitted over or stored in any system connected to the Internet. Customer shall be solely responsible for its action while using the Services. Customer hereby grants to Us the right to receive, store, process and retransmit to Customer the Customer Data and the Derivative Data and Customer hereby acknowledges that such communications will involve transmission over the Internet and/or other networks that only a portion may be owned and/or operated by Us. Customer acknowledges that such communications of Customer and Derivative Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Customer agrees that Station X is not responsible for any Customer or Derivative Data that are lost, altered, received or stored without authorization during the transmission across networks not owned and/or operated by Station X.
3.5 PII. Unless you have executed the Station X Business Associate Agreement, you are not permitted to upload, store or use PII with the Services, and genomic and phenotypic Data shall be de-identified. For example, You will not provide the name, address, social security, government issued identification number, or any other information that would directly or indirectly identify the individual from whom any genomic information was derived. Further, unless you have executed the Station X Business Associate Agreement, you accept that We will not assume any responsibility in complying with applicable data protection laws and you waive any and all rights that You might have against Us, should such laws not be complied with for any reason.
If you have executed the Station X Business Associate Agreement, you may upload, store and use PII with the Services, subject to the terms of the Station X Business Associate Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Station X Business Associate Agreement, the terms of the Station X Business Associate Agreement shall prevail.
3.6 Compliance with User Guide. The User Guide may include rules for the proper use of the Services and other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface. In addition, the User Guide may describe restrictions relating to open source or third party components or data made available in connection with the Services, if applicable. You agree that the Services will be subject to any such limitations as specified in the User Guide, and the User Guide may be updated from time to time as the Services are updated.
3.7 Integration with Third Party Data Services. The Services may contain features designed to interoperate with Third Party Data Services. To use such features, You may be required to obtain access to Third Party Data Services, and may be required to grant Us access to Your account(s) on the Third Party Data Services. If the provider of a Third Party Data Services ceases to make the service available for interoperation with the corresponding Services features on reasonable terms, We may cease providing those Services features without entitling You to any refund, credit, or other compensation.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Unless provided otherwise in the Order Form, User subscription fees are based on annual periods that begin on the subscription start date and each anniversary thereof; therefore, fees for User subscriptions are annual fees paid in advance of the start date.
4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt and prior to the start date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges shall accrue late interest at the rate of 10% of the outstanding balance per annum, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. This Section 4.3 is without prejudice to Our right to suspend or terminate the Services for failure to pay amounts owed.
4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is ten (10) or more days overdue (or five (5) or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least five (5) business days’ prior notice that Your account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending services to You.
4.5. Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if You are disputing, in writing, the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are responsible for taxes assessable based on Our income, property and employees.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights in Services. Subject to the limited use rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all software and content available through Our Services, together with all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works of the Services or the underlying software, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer, analyze or otherwise attempt to discover the source code or underlying ideas or algorithms or content made available as part of the Services, (v) remove any proprietary notices from the Services or the Customer-side code; (vi) publish or advertise any evaluation of the Services without our prior written consent, which will not be unreasonably withheld or (vii) access or the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.3. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You under this Agreement in or to Your Data or Derivative Data, including any intellectual property rights therein.
5.4. Your Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data and Derivative Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data and Derivative 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.
6.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, and (iii) subject to Section 3.7 (Integration with Third Party Data Services), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. We do not warrant that the Services will be error-free. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.4 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below.
7.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so on behalf of Your organization.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the Services infringe or misappropriate the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of the Claim Against You); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
8.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (i) Your Data or (ii) Your collection, storage, transfer, processing or use of Your Data, or (iii) Your use of the Services in breach of this Agreement, or (iv) Your use of software not provided by Us, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of the Claim Against Us); and (c) provide to You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in Sections 8.1 and 8.2, respectively.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT (i) A PARTY’S EXPRESS INDEMNITY OBLIGATION UNDER SECTION 8 AND (ii) YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO (i) A PARTY’S EXPRESS INDEMNITY OBLIGATION UNDER SECTION 8 AND (ii) THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2. Term of Purchased User Subscriptions. 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), at an agreed upon price at the time of the renewal, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. A courtesy notice will be provided by Us to You at least forty five (45) days prior to the end of the relevant subscription term.
10.3 Term of Free Trial Period. A free trial, if granted by Us, will commence on the date of notification, and continue for the period stated in our notification, typically thirty (30) days.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
10.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon fifteen (15) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.5. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon termination for any reason other than termination for cause by You, there shall be no refund and You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.6. Your Data. You are responsible for hosting and storing Your Data, We shall have no obligation to maintain or provide any of Your Data on Our systems or systems under Our control.
10.7. Surviving Provisions. Section 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.5 (Refund or Payment upon Termination), 11 (Governing Law) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. GOVERNING LAW.
11.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices shall be sent to the addresses provided in the Order Form.
11.2. Agreement to Governing Law and Jurisdiction. This Agreement shall be governed and construed by the laws of the State of California, excluding its conflict of law rules. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the federal and state courts in San Francisco, California.
11.3. Equitable Relief. Each party acknowledges that any breach of its obligations with respect to the proprietary rights of the other party may cause such other party irreparable injury, for which there may be inadequate remedy at law and, therefore, such other party will be entitled to seek equitable relief in addition to all other rights and remedies available to it.
11.4 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied- party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6. 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). Notwithstanding the foregoing, Station X may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any purported assignment in violation of this Section shall be null and void.
12.7. Publicity. We shall have the right to issue a press release regarding this Agreement upon the prior written approval of the Customer, which shall not be unreasonably withheld or delayed. No other information relative to this Agreement will be released for publication, advertising or any other purpose without the prior written approval of the other party, which shall not be unreasonably withheld or delayed.
12.8 Audit of Compliance. Customer agrees to implement reasonable controls to ensure compliance with the intended use of the Services authorized by this Agreement. We reserve the right to perform a compliance audit of Customer’s use of the Services any time during Customer’s normal business hours, upon reasonable written notice and at Our expense.
12.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. The terms and conditions set forth in this Agreement are expressly and conditionally limited to only the terms and conditions contained in this Agreement and its exhibits and addenda hereto and all Order Forms prepared by Station X and entered into by the parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation or pre-printed forms of Yours shall be incorporated into or form any part of this Agreement or be binding, We hereby object and reject any offer of such terms and conditions, Our conduct or provision of Services shall not be interpreted to indicate acceptance of such offer, and all such terms or conditions shall be null and void.