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CALCFUSION CLOUD SUBSCRIPTION AGREEMENT
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 FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF CALCFUSION CLOUD SOLUTION (“SERVICE”). 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, MAY NOT USE THE SERVICE. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK A BOX INDICATING YOUR ACCEPTANCE.
For reference, a Definitions section is included at the end of this Agreement. If you register for a Trial Version of our Services, this Agreement will also govern that Trial Version.
1. The Service
This Agreement governs your use of the CalcFusion Cloud Solution, collectively the “Service.”
2. License Grant & Restrictions
2.1 Subscription to the Service.
Subject to the terms of this Agreement, CalcFusion hereby grants to you a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service based on the Subscription Plan for which you have paid the applicable Subscription Fee, in accordance with the Documentation and solely for your internal business purposes of Computing allowed by the Service. CalcFusion and its licensors reserve all rights not expressly granted to you in this Agreement.
You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Service for a third party’s benefit unless such use has been authorized by CalcFusion; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Service, CalcFusion System or Content available to any third party not authorized by CalcFusion; (iii) modify or make derivative works based upon the Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (v) reverse engineer or decompile the Service or CalcFusion System; (vi) interfere with in any manner the Service or CalcFusion System, or (vii) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
3. Your Responsibilities
You are responsible for all activity occurring under your Account and shall abide by all applicable local, 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) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and will notify CalcFusion promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to CalcFusion immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another CalcFusion user or provide false identity information to gain access to or use the Service. You will not attempt to use your access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein.
4. Security; Customer Data
4.1 Processing of Data.
You acknowledge and agree that in order to provide the Service to you, you must allow the Service brief but periodic access to your Third Party System/Service account to retrieve, manipulate, process, and modify Third Party Data (“Process”), and you expressly consent to the Service’s accessing your Third Party System/Service account to Process Third Party Data solely as is necessary to provide Service. If the Service cannot for any reason access your Third Party System/Service account or Process Third Party Data, CalcFusion may not be able to provide you the Service, and CalcFusion will be excused from any nonperformance of Service arising from your failure to allow CalcFusion access to your Third Party System/Service account or Process Third Party Data. You acknowledge that to provide the Service, Third Party Data leaves the Third Party System/Service.
CalcFusion does not control, and has no responsibility or liability for, security issues caused by the Third Party System/Service. You acknowledge and agree that use of or connection to the Internet provides the potential opportunity for unauthorized parties to circumvent such precautions and illegally gain access to the Service and Third Party Data.
4.3 Third Party Data.
CalcFusion does not own Third Party Data. You are solely responsible for Third Party Data, including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of Third Party Data, and any intellectual property ownership or right to use Third Party Data. You will not provide, post or transmit any Third Party Data that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. CalcFusion may take remedial action if Third Party Data violates Section 4.3. CalcFusion is under no obligation to review Third Party Data for accuracy or potential liability.
If you have paid CalcFusion all applicable fees due, CalcFusion will provide Support Services to you during Business Hours. To receive Support Services, you must email email@example.com. CalcFusion will employ reasonable business efforts to resolve support issues within a reasonable time. Notwithstanding the foregoing, CalcFusion does not guarantee that support issues will be resolved in a specific period of time or that they will be resolved exactly according to customer specifications.
6. Intellectual Property Ownership
CalcFusion and its licensors own all right, title and interest, including all related Intellectual Property Rights, in and to the Calcfusion Technology, the Content and the Service, and 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, CalcFusion, or the Intellectual Property Rights owned by CalcFusion. The CalcFusion name, the CalcFusion logo, and the product names associated with the Service are trademarks of CalcFusion or other parties, and no right or license is granted to use them.
6.2 Customer Duties.
You retain all right, title and interest in and to the Third Party Data. You grant to CalcFusion all necessary licenses and rights in and to Third Party Data solely as necessary for CalcFusion to provide the Service to you or as required by law. You will be solely responsible for providing all Third Party Data required for the proper operation of the Service. CalcFusion will not knowingly use or access any Third Party Data except as necessary to provide the Service or as otherwise authorized by you.
7. Fees, Billing, Renewal
You agree to pay CalcFusion any fees published on the relevant Service listing web page or quoted by CalcFusion in any Quote or Order Form for use of the Service (“Fees”). Except as otherwise specified herein, (i) Fees are quoted and in the published currency , (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, quarterly, bi-annual or annual periods that begin on the Effective Date and each monthly, quarterly, or yearly anniversary thereof (“Billing Period”).
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 fees levied by any financial institution such as wire transfer fees for payment of the Service from You to CalcFusion Ltd. (“Bank Fees”). You are responsible for paying all Taxes and Bank Fees associated with Your purchases hereunder. If CalcFusion Ltd. has the legal obligation to pay or collect Taxes or pay Bank 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 CalcFusion Ltd. 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 Company’s income, property and employees.
7.2 Billing; Payment.
Unless You submit payment via company check or wire transfer, You will provide CalcFusion Ltd. with valid and updated credit card information or information for a CalcFusion Ltd. accepted payment method (“Payment Method”). You authorize CalcFusion Ltd. to charge the Payment Method for all Services You purchase for the initial subscription term and any renewal subscription term(s) as set forth in Section 8 and 9. 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.
In the event that Customer prefers to submit payment via company check or wire transfer, an invoice will be sent to the Customer on the date or shortly after the Order was made. The Service corresponding the Order will only be activated once CalcFusion Ltd. has confirmed the receipt of Payment. For invoice and wire transfer payments, Customer agrees to provide CalcFusion Ltd. with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator/main contact. Customer agrees to notify CalcFusion Ltd. of any update to this information within 30 days of any change to it in accordance with Section 18, Notices of the License Agreement. If the contact information Customer has provided is false or fraudulent, CalcFusion Ltd. reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
7.3 Non-Payment and Suspension.
In addition to any other rights granted to CalcFusion herein, CalcFusion reserves the right to suspend or terminate this Agreement and your access to the Service if you fail to pay any undisputed amount owed within 30 days of its due date for renewal of the Service. Overdue amounts are subject to a late charge of 1.0% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. If you or CalcFusion initiates termination of this Agreement, you will be obligated to pay the balance due on your account. CalcFusion reserves the right to impose a reconnection fee in the event the Service is suspended.
This Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. Subscriptions purchased by You commence on the Effective Date of this Agreement and continue for the subscription term specified therein.
All subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice, as specified in Section 18, of non-renewal at least 15 days before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless CalcFusion 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), 9 (Fees and Payment for Purchased Services), 10 (Non-Payment and Suspension), 13 (Representations & Warranties), 14 (Mutual Indemnification), 15 (Disclaimer of Warranties), 17 (Limitation of Liability), 18 (Notices), 20 (Agreement to Governing Law and Jurisdiction), 21 (Waiver of Jury Trial), and 22 (General Provisions) shall survive any termination or expiration of this Agreement.
9. Suspension; Termination for Cause
If you are in breach of this Agreement, CalcFusion may suspend your access to and use of the Service until you have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within 30 days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to CalcFusion by you under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other all property of the other party in its possession or control, and (c) CalcFusion will remove all active Customer Data from the CalcFusion System and all your access to or use of the Service will be immediately suspended. The rights and duties of the parties under Sections 2.3, 3, 4.3, 6-15, 17, and 18 will survive the termination or expiration of this Agreement.
10. Representations & Warranties
10.1 Mutual Warranty.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
10.2 Third Party Data Warranty.
You represent and warrant that you own or have obtained all rights, consents, permissions, or licenses necessary to allow CalcFusion access to, possession of, manipulation of, and use of the Third Party Data.
11. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5, CALCFUSION 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, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CALCFUSION AND ITS LICENSORS.
12. Mutual Indemnification
12.1 Your Indemnity.
You shall indemnify and hold CalcFusion, 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 arising from or related to CalcFusion’s access to, possession of, manipulation of, and use of the Third Party Data as is necessary to provide the Service; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties, (iii) a claim arising from CalcFusion’s access to your Third Party System/Service account.
12.2 CalcFusion’s Indemnity.
If any action is instituted by a third party against you based upon a claim that the Service, as provided, infringes a Hong Kong patent, copyright or trademark, then CalcFusion will defend such action at its own expense on behalf of you and will pay all damages attributable to such claim which are finally awarded against you or paid in settlement of such claim. CalcFusion may, at its option and expense, and as your exclusive remedy hereunder: (a) procure for you the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and your access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. CalcFusion will have no liability to you for any infringement action that arises out of a breach of the terms and conditions of this Agreement by you or of the use of the Service (i) after it has been modified by you or a third party without CalcFusion’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by CalcFusion where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF CALCFUSION AND YOUR EXCLUSIVE REMEDY AGAINST CALCFUSION OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
A party seeking indemnification under this Section 12 will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defense and settlement of the claim; and (c) provide to the other party all available information and assistance.
13. Internet; Delays
YOU ARE SOLELY RESPONSIBLE FOR PROVIDING INTERNET ACCESS IN ORDER TO ACCESS AND USE THE SERVICE. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CALCFUSION LTD. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
14. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID OR PAYABLE FROM YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, 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 THE SERVICE, OR THIS AGREEMENT,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.
15.1 Confidential Information.
Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
15.2 Protection of Confidential Information.
The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 15.1. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations under Section 15.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
15.4 Return of Confidential Information.
The Receiving Party will return to the Disclosing Party or destroy all active Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 15.4.
16. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of CalcFusion, (such approval not to be unreasonably withheld) but may be assigned without your consent by CalcFusion in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) CalcFusion, (ii) a sale, lease, license, or other disposition of all substantially all of the assets of CalcFusion, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and both parties agree to submit themselves to the non-exclusive jurisdiction of the Hong Kong courts. No text or information set forth on any other purchase order, preprinted form or document (other than an associated CalcFusion’s quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and CalcFusion. The failure of CalcFusion to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by CalcFusion in writing. This Agreement, together with any associated CalcFusion’s quote or invoice, comprises the entire agreement between you and CalcFusion and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Notice hereunder will be effective upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s county, whichever occurs sooner. Any notice to CalcFusion will be delivered to CalcFusion Ltd., Level 12, 28 Hennessy Road, Wanchai, HONG KONG. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
As used in this Agreement the following terms have these meanings:
“Business Hours” shall mean the hours between 9 am and 6 pm, Hong Kong Time, Monday through Friday, exempting recognized Hong Kong and company declared holidays.
“Content” means the visual information, documents, software, products and services contained or made available to you in the course of using the Service, other than Third Party Data.
“Third Party Data” means any data, information (including without limitation personally identifiable information), content, templates, forms, or material provided, made available, or submitted by you to the Service or retrieved by the Service from your Third Party System/Service account,.
“Documentation” means CalcFusion’s Guides and Release Notes that are generally made available by CalcFusion to all customers.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CalcFusion’s employees), telecommunications or network failures or delays, computer failures involving hardware or software not within CalcFusion’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Administrator(s)” mean those Users designated by you who are authorized to purchase licenses and otherwise administer your use of the Service.
“License Term(s)” means the period(s) You are licensed to use the Service pursuant to Your Subscription.
“Third Party System/Service” means the system or service provided by a Third Party to which CalcFusion is communicating with and is needed to provide the Service.
“CalcFusion System” means the hardware, software, network equipment, and other technology used by CalcFusion to deliver the Service.
“CalcFusion Technology” means the CalcFusion System, and any other of CalcFusion’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by CalcFusion in providing the Service.
“Support Services” means technical assistance provided by CalcFusion personnel to your Administrator(s) relating to Support Incidents.
“Support Incident” means (i) a basic question related to the use or configuration of the Service, or (ii) a reproducible non-conformity in the Service causing the Service not to operate in substantial conformance with the applicable Documentation.