END-USER LICENSE AGREEMENT (EULA)

Last Revised: 2023-05-27 19:02:00

PLEASE READ THIS AGREEMENT CAREFULLY, BEFORE COMPLETING THE DOWNLOAD OR INSTALLATIONS PROCESS AND USING THE SOFTWARE, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

This END-USER LICENSE AGREEMENT ("Agreement") is between Monnel Canada Inc. ("we", "us", "our" or “Licensor”) and you (“you”, "your" or “Customer”) and governs your use of Offerings purchased through Microsoft Azure Marketplace or AppSource Marketplace (collectively, “Marketplace”) or our website hosted at www.pbivizedit.com, or through a direct transaction with us. This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under “Definitions.”

1. License to Offerings

1.1 License grant. Offerings are licensed and not sold. Upon our acceptance of an Order, and subject to Customer’s compliance with this Agreement, Licensor grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s use and business purposes and are non-transferable except as expressly permitted under this Agreement or applicable law.

Offerings may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement.

1.2 Duration of Licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. For Subscriptions that have been approved by the Customer for automatic renewal, Subscriptions may renew automatically until canceled. Perpetual Software licenses become perpetual upon payment in full.

1.3 End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement.

1.4 Affiliates. Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against us. Customer will remain responsible for all obligations under this Agreement and its Affiliates’ compliance with this Agreement and any applicable Order(s).

1.5 Reservation of Rights. We reserve all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement our patents or other intellectual property in the device itself or any other software or devices.

1.6 Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):
a. copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;
b. install or use any third-party software or technology in any way that would subject our intellectual property or technology to any other license terms;
c. work around any technical limitations in an Offering or restrictions in Documentation;
d. separate and run parts of an Offering on more than one device;
e. upgrade or downgrade parts of an Offering at different times;
f. use an Offering for any unlawful purpose;
g. transfer parts of an Offering separately; or
h. distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.

1.7 License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or (B) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Offering and render any copies unusable. Customer must notify us of a License transfer and provide the transferee a copy of this Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.

1.8 Feedback. Any Feedback is given voluntarily, and the provider grants the recipient, without charge, a nonexclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).

2. Privacy

2.1 EU Standard Contractual Clauses. To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by us at the applicable URL for such terms or as otherwise communicated to Customer.

2.2 Personal Data. Customer consents to the processing of Personal Data by us and our Affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to us, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.

2.3 Processing of Personal Data; GDPR. To the extent Licensor is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data; GDPR”):

3. CONFIDENTIALITY

3.1 Non-Disclosure Agreement. The parties will treat all confidential information exchanged between the parties under this Agreement in accordance with the separate nondisclosure agreement (“NDA”) executed by the parties. If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information.

3.2 Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that reasonable person should understand is confidential, including, but not limited to, Customer Data,Support Data, the terms of this Agreement, and Customer’s account authentication credentials.Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.

3.3 Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

3.4 Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

3.5 Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted by Licensor; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

4. Maintenance and Support SLA

4.1 Support for Subscriptions. For issues reported by you, we intend to provide the best support so that you can use our Services without any problems. In most cases, where feasible, we will provide issue fixes within a reasonable period depending on the severity and impact of the issue. All product upgrades, new features, bug fixes would be available as part of our Support.

4.2 Support for Perpetual Licenses. All our perpetual licenses are sold with a minimum one(1) year of included support bundled with the license Offering ("Annual Maintenance"). Annual Maintenance for perpetual licenses can be renewed by paying an optional and additional annual fee. Annual Maintenance is available for renewal as single or multi-year(up-to 3 year) options. Customers are eligible for critical bug fixes irrespective of their subscription to an Annual Maintenance.

4.3 Support Limitations. Some of the issues, for instance, certification by Microsoft or issues caused by a 3rd party library (for instance Plotly) that our product depends on, will require approval and actions from a 3rd party or parties (Microsoft and Plotly) for which the timeline is beyond our control.

4.4 Free and Trial Versions. For Free or Trial version of the Software, for which Customer is not entitled to any Support Services. We may, at our discretion, choose to provide services for Free and Trial versions on a case-by-case basis.

5. VERIFYING COMPLIANCE

5.1 Verification process. Customer must keep records relating to Offerings it and its Affiliates use or distribution. At Licensor’s expense, Licensor may verify Customer’s and ts Affiliates’ compliance with this Agreement at any time upon 30 days' notice. Licensor may engage an independent auditor (under nondisclosure obligations) to conduct an audit. Customer must promptly provide any information and documents that Licensor or the auditor reasonably requests related to the verification and visual access to systems running the Offerings. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

5.2 Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, Customer must , within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Licensor’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Licensor for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less.

5.3 Compliance under GDPR Upon request, Licensor will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.

6. Representation and warranties

6.1 Licensor continuously represents and warrants that:

a. it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
b. its performance will not violate any agreement or obligation between it and any third party;
c. the Offering will substantially conform to the Documentation;
d. the Offering will not:

• to the best of our knowledge, infringe or violate any third-party patent, copyright, trademark, trade secret, or other proprietary rights; or
• contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and

e. While performing under this Agreement, we will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti- Corruption Laws.

6.2 Warranties

6.2.1 Limited warranties and remedies. To the extent permitted by applicable law, the remedies below are Customer’s sole remedies for breach of the warranties provided in this section, and Customer waives any warranty claims not made during the applicable warranty period.

6.2.2 Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement or applicable documentation, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.

6.2.3 Disclaimer. Except for the limited warranties expressly stated in this Agreement, the Offering is provided as is. To the maximum extent permitted by law, Licensor disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular purpose, whether arising by a course of dealing, usage or trade practice, or course of performance. Professional Services that are provided without charge are provided “AS IS,” WITHOUT ANY WARRANTY OR CONDITION.

7. Defense of third-party claims

7.1 By customer Customer will defend Licensor and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Customer’s or any authorized user’s violation of this Agreement or user terms (a “Claims Against Licensor”) and will indemnify Licensor and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Licensor or its Affiliates in connection with or as a result of, and for amounts paid by Licensor or its Affiliates under a settlement Customer approves of in connection with a Claim Against Licensor. Licensor must provide Customer with prompt written notice of any Claims Against Licensor and allow Customer the right to assume the exclusive defense and control of the claim, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.

7.2 By Licensor Licensor will defend Customer from and against any and all third-party claims, actions, suits, proceedings, and demands alleging that (i) the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights and (ii) any violation of applicable law including Data Protection Laws (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Licensor approve of in connection with a Claim Against Customer; provided, however, that the Licensor has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Licensor products, including third-party software; and (2) any modification, combination or development of the Offering that is not performed or authorized in writing by Licensor, including in the use of any application programming interface (API). Customer must provide Licensor with prompt written notice of any Claim Against Customer and allow Licensor the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states Licensor sole liability with respect to, and Customer’s exclusive remedy against Licensor for, any Claim Against Customer.

7.3 Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

8. LIMITATION OF LIABILITY

For each Offering, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the term of the applicable licenses, subject to the following:

8.1 Perpetual Licenses. For each Product licensed on a perpetual basis, each party’s maximum, aggregate liability is the amount Customer paid for the applicable licenses.

8.2 Subscriptions. For Offerings ordered on a subscription basis, Licensor’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident. For Offerings ordered on a subscription basis, Licensor’s maximum liability to Customer for any unauthorized access, use, or disclosure of Customer Data due to a breach of Licensor’s obligations under Section II(4) (Security), Licensor’s maximum liability to Customer will not exceed two times (2x) the amount Customer paid for the Offering during the 12 months before the incident.

8.3 Free Offerings and distributable code. For Offerings provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Licensor, Licensor’s liability is limited to direct damages finally awarded up to US$5,000.

8.4 No Indirect Damages. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

8.5 Exceptions. No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations under Section 3 (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligation under Section 7; (3) violation of the other party’s intellectual property rights; or (4) gross negligence, willful misconduct, or fraud.

9. PRICING AND PAYMENT

9.1 Fees for Paid Services. Some of our Services are offered for a fee, like certain pbivizedit.com plans or Services (collectively, “Paid Services”). This section applies to any purchases of Paid Services. By using a Paid Service, you agree to pay the specified fees. Depending on the Paid Service, there may be one-time fees or recurring fees. For recurring fees (subscriptions), your subscription begins on your purchase date, and we’ll bill or charge you in the automatically renewing interval (such as annually or biennially) you select, on a pre-pay basis until you cancel, which you can do at any time by contacting the relevant support team.

9.2 Purchase of an Offer through Microsoft Commercial Marketplace For purchases that are made through Microsoft Commercial Marketplace, Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use (available at the url https://learn.microsoft.com/en-us/legal/marketplace/marketplace-terms) and applicable Order.

9.3 Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Licensor with a payment method, Customer (1) consents to Licensor’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Licensor to charge Customer using that payment method for orders under this Agreement.

If the Customer's payment fails, we suspect fraud, or Paid Services are otherwise not paid for or paid for on time (for example, if the Customer contacts its bank or credit card company to decline or reverse the charge of fees for Paid Services), we may immediately cancel or revoke the Customer's access to Paid Services without notice to the Customer. The Customer authorizes us to charge any updated payment information provided by Customer's bank or payment service provider (e.g., new expiration date) or other payment methods provided if we can't charge the Customer's primary payment method.

9.4 Invoices. Licensor may invoice eligible Customers. Customer’s ability to elect payment by invoice is subject to Licensor’s approval of Customer’s financial condition. Customer authorizes Licensor to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Licensor may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Licensor of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.

9.5 Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Licensor for the period corresponding to the invoice. Customer will pay all amounts due within thirty (30) calendar days following the invoice date.

9.6 Late Payment. Licensor may, at its option, assess a late fee on any payments to Licensor that are more than fifteen (15) calendar days past due at a rate of up to two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.

9.7 Recurring Payments. For subscriptions that renew automatically, Customer authorizes Licensor to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Licensor to store Customer’s payment details and process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of automated clearing house or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Licensor or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due. If Customer received a discount, used a coupon code, or subscribed during a free trial or promotion, the paid subscription will automatically renew for the full price of the subscription at the end of the discount period. This means that unless Customer cancels a subscription, it'll automatically renew and we will charge Customer payment method(s).

9.8 Cancellation of Paid Subscription. Customer must cancel at least one month before the scheduled end date of any annual subscription and at least 24 hours before the end of any shorter subscription period. If Customer has purchased access to multiple services, there may be multiple renewal dates. You can get information on your renewal date(s), cancel, or manage subscriptions by contacting the support team.

9.9 Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees do not include applicable federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees, or charges (“Taxes”). The Customer is responsible for paying all applicable Taxes relating to its use of our Services, its payments, or its purchases. If we are obligated to pay or collect Taxes on the fees the Customer has paid or will pay, the Customer is responsible for those Taxes, and we may collect payment from the Customer.

We may change our fees at any time in accordance with these Terms and requirements under applicable law. This means that we may change fees going forward, start charging fees for Services that were previously free, or remove or update features or functionality that were previously included in the fees. If the Customer doesn’t agree with the changes, the Customer must cancel their Paid Service.

9.10 Price Changes. Prices of Offers may change during the term. The new price of the Services can be higher or lower than the previous price. You will be notified prior to any price increase going into effect.

9.11 Refunds

a. In almost all cases, license details are sent digitally to the email ID provided by the Customer in the Order form. To ensure data security of our Customers, we do not implement any license checks through our servers. To ensure that the Customers have a reasonable window to check compatibility of the Offer in their environment, a 30 day free trial license with no restriction, is provided with all of our Offers. Customers must use the free trial license and make a purchase only after they are fully satisfied with the Offer. At our discretion, we may offer refunds. In the cases where we decide to issue refunds, any processing fees charged by our bank and payment processors will be deducted from the original payment. The refunds are credited to the original payment method.

For Orders through our online portal - www.pbivizedit.com - All purchases are final and there will not be any refunds once the license details have been sent to the Customer's designated contact email ID.

b. For Orders processed offline and payments made either through direct payment links or through a direct deposit, or wire transfer to any of our bank accounts, we will accept refunds only during the window when payment confirmation is awaited and the license details have not been communicated to the Customer via email or via any other written means. No refunds will be processed once the license details have been communicated to the Customer.
We will also provide refunds if required by law.

9.12 European Users. The Customer has the right to withdraw from the transaction within fourteen (14) days from the date of the purchase without giving any reason as long as the purchase was not of a customized nature, the service has not been fully performed, or subject to other limitations as permitted by law. For digital content, Customer agrees that any purchase of digital content will be made available to them immediately and as a result they waive any right of withdrawal to such content.

If the Customer cancels this contract, we will reimburse all payments we have received from Customer, including delivery costs (with the exception of additional costs resulting from the fact that Customer has chosen a type of delivery or payment other than the most favorable option offered by us), without undue delay and no later than within fourteen days(14) from the day on which we received the notification of cancellation of this contract. For this repayment, we will use the same means of payment that the Customer used for the original transaction, unless expressly agreed otherwise with Customer; Customer will not be charged for this repayment. If Customer has requested that we begin our services during the withdrawal period, Customer will pay us a reasonable amount corresponding to the services already provided up to the time Customer notifies us, in writing, of the exercise of the withdrawal right compared to the total scope of the services provided for in the contract. If Customer cancels its contract with us, Customer will refrain from using the digital content or digital services or making them available to third parties.

The Customer may exercise its right to withdrawal by sending a clear, written request to: support@PBIVizEdit.com

10. Term and Termination

10.1 Term This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.

10.2 Termination without Cause Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. we will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.

10.3 Termination for Cause Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:

10.4 Suspension We may suspend use of the Offering without terminating this Agreement during any period of material breach. We will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.

10.5 Refund. For Offerings ordered on a subscription basis that are $100,000 or more, if Licensor breaches any of the foregoing warranties and those breaches remain uncured for 30 days, Customer may terminate this Agreement and Licensor will provide Customer a full refund of all fees paid to Licensor.

10.6 Survival The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.

11. Modifications to this Agreement

Licensor may update this Agreement from time to time. No changes will apply to perpetual Software licenses previously acquired. Changes will apply to new orders and to existing Subscriptions and Statements of Services as follows:

11.1 Data protection and SLA. Changes to the Data Protection and SLA will apply as provided in those documents.

11.2 Product Terms. Material Adverse Changes will not apply during the then-current Subscription term but will take effect upon renewal. All other changes will apply when they are published on the Product Terms site. In addition, for Software Subscriptions, if Customer chooses to update the Software to a new version before the end of the Subscription term, the terms in effect at the time of the update will apply to the use of that Software.

11.3 Other terms. Customer may be required to accept revised or additional terms when placing a new order. For existing Subscriptions and Statements of Services, Customer will be notified at least 60 days before changes take effect to these General Terms or any other terms that are part of the Agreement except the Data Protection, SLA, and Product Terms, which have separate terms for updates. Such changes will take effect upon renewal unless Customer accepts them earlier in the manner specified in the notice and will not supersede or modify any amendments to this Agreement. Customer agrees that its continued use of the Products or Professional Services after renewal will constitute its acceptance of all changes. If Customer does not agree to the changes, it must stop using the Products and Professional Services by the end of the Subscription or support term and turn off recurring billing for any Subscriptions that are set to renew automatically.

11.4 Changes proposed by Customer. Customer may not modify this Agreement. Any additional or conflicting terms contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

12. Miscellaneous

12.1 Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:

• Order
• this Agreement;
• Service Level Agreement (SLA); and
• Documentation.

12.2 Independent contractors. The parties are independent contractors. Customer and Licensor each may develop products independently without using the other’s Confidential Information.

12.3 Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services of others.

12.4 Amendments. Unless otherwise agreed in a writing signed by both parties, any changes made to the terms of this Agreement, including privacy terms, become applicable only after expiry of the existing term, or upon renewal for a new term.

12.5 Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights we may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

12.6 Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

12.7 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

12.8 No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms

12.9 Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to us must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. We may send notices and other information to Customer by email or other electronic form.

12.10 Applicable law

12.11 Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

12.12 Government procurement rules. By accepting this Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements.

12.13 Compliance with laws. Publisher will comply with all laws and regulations applicable to its provision of the Offerings. Publisher will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of the Offerings.

12.14 Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:

a. all internal references are to this Agreement and its parties;
b. all monetary amounts are expressed and, if applicable, payable, in U.S. dollars
c. URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
d. a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;
e. “written” or “in writing” means a paper document only, except where email is expressly authorized;
f. “days” means calendar days;
g. “may” means that the applicable party has a right, but not a concomitant duty
h. “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;
i. “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;
j. “notify” means to give notice under subsection (i) above; and
k. a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature service by a duly authorized representative of the signing party

13. DEFINITIONS

"Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.

"Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S.Foreign Corrupt Practices Act.

"Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

"Confidential Information” is defined in the "Confidentiality” section.

"Customer Data” means all data, including all text, sound, software, image or video files that are provided to Licensor or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.

"Data Protection Law” means any law applicable to Licensor or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data ("GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.

"Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Licensor makes available for, or that result from use of, the Offering.

"End User” means any person Customer permits to use an Offering or access Customer Data.

"Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.

"Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.

"Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Licensor makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Licensor to provide the foregoing. Offering availability may vary by region.

"Order” means an ordering document used to transact the Offering via the Marketplace.

"Personal Data” means any information relating to an identified or identifiable natural person.

"Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.

"Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

"Subcontractor” means any third party: (1) to whom Licensor delegates its obligations under this Agreement, including a Licensor Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Licensor or a Licensor Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.

"Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Licensor by or on behalf of Customer (or that Customer authorizes Licensor to obtain from an Offering) through an engagement with Licensor to obtain technical support for the Offering covered under this Agreement.

"Use” means to copy, download, install, run, access, display, use or otherwise interact with.