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Subscription and Professional Services Agreement

This subscription and services agreement (the “Agreement”) governs the provision of the Services. This Agreement incorporates all Orders entered into by the parties, the Documentation and any other document which this Agreement states forms part of this Agreement. This is an agreement between the applicable Squiz Contracting Party specified in Section 12.2 below (“Squiz”) and the customer purchasing Services under the Agreement (“the Customer” or “you”). The Customer and its Affiliates may place orders under this Agreement by submitting separate Order(s).

  1. SUBSCRIPTION SERVICES

    1.1. Provision of Subscription Services. Squiz will make the Subscription Services available to the Customer pursuant to this Agreement, during the Subscription Term, solely for the Customer’s internal business purposes. Squiz may modify the systems and environment used to provide the Subscription Services to reflect changes in technology, industry practices and patterns of system use and update the Documentation accordingly, provided that it does not materially degrade the functionality of the Subscription Services. Subsequent updates, upgrades, enhancements to the Subscription Services made generally available to all subscribing Customers will be made available to the Customer at no additional charge; however, we make no commitments about the availability of any future updates, upgrades, enhancements. New features, functionality or enhancements to the Subscription Services may be marketed separately by Squiz and may require the payment of additional fees. Squiz will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.

    1.2. Usage. If an Order or SOW sets out particular Usage Metrics in respect of the Subscription Services (for example, a particular number of named users), then the Customer may only use the Subscription Services within the scope of the stated usage metrics. The Customer may purchase an increase to their Usage Metric or additional subscriptions by executing an additional Order. If the Customer’s use of the Subscription Services exceeds a Usage Metric, then the Customer agrees to pay Squiz the Fees for such excess usage. The Fees for excess usage will be calculated in accordance with any relevant unit rate specified in the relevant Order. Where no such unit rate is specified, then Squiz’s Standard Rates will apply.

    1.3. Hosting. Squiz will provide the Subscription Service via the Squiz Experience Cloud with the Deployment Model option specified in relevant Order. Any Service Levels associated with the different Squiz Experience Cloud deployment model options are as set out in the Support Agreement.

    1.4. Support. Squiz will provide the Support Services for the Customer’s Subscription Services as nominated in the Order. Support Services and Service Levels are specified for a Subscription Service in the Support Agreement. Squiz will use reasonable endeavours to meet or exceed any applicable Service Levels. If Squiz fails to meet a Service Level, then the consequences (if any) set out in the Support Agreement will apply. For clarity, Squiz’s only liability for failing to meet a Service Level will be as set out in the Support Agreement.

    1.5. Trial Services and pre-release. Squiz may designate particular Subscription Services as being offered on a “trial,” “evaluation,” “not for resale,” or other similar basis. Notwithstanding any other provision of this Agreement, the Customer may only use such Subscription Services for the particular period and purposes Squiz notifies the Customer of, when Squiz offers such Subscription Services to the Customer. At a minimum, the Customer must not use any materials the Customer produces with such Subscription Services for any commercial purposes. Squiz may designate particular Subscription Service as being offered on a “pre-release”, “beta” or similar basis. Such a Subscription Service does not represent the final product and may contain bugs that may cause system or other failure and data loss. Squiz may choose not to release a production version of such Subscription Service. The Customer must promptly cease using such Subscription Service and destroy all copies of it if Squiz requests the Customer to do so, or if Squiz releases a production version of such Subscription Service.

    1.6. Third party services. If the Customer accesses any third-party services or third-party content through the Subscription Services, then the Customer’s use of those third-party services or that third party content is subject to separate terms and conditions between the Customer and the relevant third party. Squiz is not responsible for any third-party services or third-party content that the Customer may access through the Subscription Services.

    1.7. Future availability of Subscription Services. Subject to the terms of the Order, where the Customer purchases particular Subscription Services for a period term, then Squiz only commits to providing those Subscription Services for that term. Squiz does not provide any commitments regarding the future availability of any Subscription Services, or that it will enter into any particular Order with the Customer.

    1.8. Exclusion. The Subscription Services does not include any services related to the following (i) the correction of errors caused by, arising from or in connection with (a) the Customer’s negligence, misuse or malpractice; or (b) the Customer’s incorrect data entry, except where it can be shown that such incorrect data resulted from an error in validation routines which in normal circumstances would have prevented such erroneous data; or (c) an external system, network problem, third party software, inadequate hardware or issues relating to hardware; (ii) hardware maintenance, excluding hardware that Squiz owns and operates; (iii) the Customer’s scheduled downtime, or downtime otherwise caused by the Customer; or (iv) any other exclusion set out in the Documentation, however, Squiz may agree to perform any of these services for the Customer, for an additional Fee.
  2. SECURITY AND DATA PRIVACY

    2.1. Security and Internal Controls. In accordance with Squiz’s Security Annex incorporated herein by reference, Squiz shall (i) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Subscription Services, and of the Customer Data contained within the Subscription Services, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (ii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and (iii) perform periodic testing by independent third party audit organizations, which include ISO 27001 certification or surveillance audits of the infrastructure performed annually. In no event during the Subscription Term shall Squiz materially diminish the protections provided by the controls set forth in Squiz’s then-current Security Annex.

    2.2. Data Privacy. In performing the Subscription Services, Squiz will comply with the Squiz Privacy Policy incorporated herein by reference. The Squiz Privacy Policy is subject to change at Squiz’s discretion; however, Squiz policy changes will not result in a material reduction in the level of protection provided for the Customer Data during the Subscription Term. Where the Customer’s use of the Subscription Services includes the processing of the Customer Data by Squiz that are subject to the General Data Protection Regulation (EU) 2016/679, such data processing by Squiz as a data processor will comply with the requirements of the aforementioned regulation and the parties will execute the Squiz Data Processing Agreement located at https://www.squiz.net/policies/data-processing-agreement. Squiz shall process personal data on behalf of and in accordance with the Customer’s instructions consistent with this Agreement, the Squiz Data Processing Agreement and as necessary to provide the Subscription Services.

    2.3. Data Center Region. The Customer may select the Data Center Region from those available for the applicable Subscription Services by making the appropriate nomination on the Order. Squiz will not move the selected Data Center Region without the Customer’s written consent or unless required to comply with the law or requests of a governmental or regulatory body (including subpoenas or court orders). The Customer consents to Squiz’s storage of the Customer Data in, and transfer of the Customer Data into, the Data Center Region the Customer selects.

    2.4. Compliance with Law. Squiz will comply with all laws applicable to the provision of the Subscription Services, including applicable security breach notification laws, but not including any laws applicable to the Customer’s industry that is not applicable to information technology services providers generally.
  3. THE CUSTOMER OBLIGATIONS

    3.1. Responsibilities. The Customer shall (i) access and use the Subscription Services in accordance with this Agreement, applicable laws and government regulations and Squiz’s Acceptable Use Policy which is incorporated herein by reference (and located at http://www.squiz.net/policies/terms-of-service), (ii) provide us with all reasonable assistance and co-operation to provide the Services, including as may be set out in this Agreement (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, (iv) notify Squiz promptly of any such unauthorized access or use, (v) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications and (vi) Squiz may perform an audit to confirm compliance with this Agreement and the usage metrics for the Subscription Services. Should the audit identify that the Customers agreed usage metrics have been exceeded, the parties will discuss the next steps including ways to manage the usage metrics to the appropriate level or to increase the Customer’s usage rights, these steps may impose additional costs. If the Customer fails to do any of these things, then this may affect Squiz’ ability to provide the Services.

    3.2. Customer’s users. The Customer may allow its employees and, if specified in an Order, its Affiliates and its Affiliates’ employees, to access and use the Subscription Services and Deliverables. The Customer is responsible for the access and use of the Subscription Services and Deliverables by those people and must ensure that they comply with the terms of this Agreement that are relevant to their access and use (including the Acceptable Use Policy). The Customer is also responsible for any access or use of the Subscription Services or Deliverables by any person who do so by using the Customer’s access credentials or Customer Applications, and the acts and omissions of any such people will be treated as having been carried out by the Customer.

    3.3. Customer Data. The Customer is solely responsible for the Customer Data, including (i) ensuring its accuracy, completeness, quality, integrity and reliability; (ii) defining and implementing appropriate security and access controls in the Subscription Services (and if the Customer does not do so, the Subscription Services may default to the most permissive setting); (iii) ensuring that the Customer’s users know how to use and disclose Customer Data to others; and (iv) obtaining all rights necessary to allow Squiz to use the Customer Data to provide the Services. Squiz recommends that the Customer backs up its Customer Data elsewhere (that is, outside of the Subscription Services).

    3.4. No Sensitive Personal Information. The Customer specifically agrees not to use the Subscription Services to collect, store, process or transmit any Sensitive Personal Information. The Customer acknowledges that Squiz is not a Business Associate or subcontractor (as those terms are defined in the USA Health Insurance Portability and Accountability Act (HIPAA)) or a payment card processor and that the Subscription Services are neither HIPAA nor PCI DSS compliant. Squiz will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

    3.5. Restrictions. The Customer shall not or permit another person or entity to (i) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription Services; (ii) except as authorised by Squiz in writing use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (iii) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services; (iv) undertake any benchmark or performance tests of the Subscription Services; (v) provide any third party with access to or the ability to use the Subscription Services, except as expressly permitted under this Agreement.

    3.6. Acceptable Use. The Customer must not use the Subscription Services to (i) store or transmit any Malicious Code; (ii) harm, threaten, abuse, impersonate, menace or harass any person, or misrepresent the Customer’s relationship with any person; (iii) publish any material that is false, defamatory, offensive, obscene or incites illegal activity; (iv) engage in chain letters, junk mails, pyramid schemes, phishing, spamming, or other unsolicited messages; (v) place an advertisement for any products or services in the Subscription Services except with Squiz’s prior written approval; (vi) violate or infringe the privacy or intellectual property of any person; or (vii) otherwise breach any laws.
  4. PROFESSIONAL SERVICES

    4.1. Standard Professional Services. A description of Squiz’s standard Professional Services offerings, including training, and workshops, may be found in the Documentation. Standard Professional Services may be identified in an Order without the need for an SOW.

    4.2. Other Professional Services. For any other Professional Services, Squiz will provide the Customer with Professional Services as set forth in the applicable SOW. Each SOW will include, at a minimum (i) a description of the Professional Services and any Deliverable to be delivered to the Customer; (ii) the scope of Professional Services; (iii) the schedule for the provision of such Professional Services; and (iv) the applicable fees and payment terms for such Professional Services, if not specified elsewhere.

    4.3. Designated Contact and Cooperation. Each party will designate in each SOW an individual who will be the primary point of contact between the parties for all matters relating to the Professional Services to be performed thereunder. The Customer will cooperate with Squiz, will provide Squiz with accurate and complete information, will provide Squiz with such assistance and access as Squiz may reasonably request, and will fulfill its responsibilities as set forth in this Agreement and the applicable SOW. If applicable, while on the Customer premises for Professional Services, Squiz personnel shall comply with the Customer’s reasonable rules and regulations regarding safety, conduct, and security made known to Squiz.
  5. FEES AND PAYMENT

    5.1. Fees. The Customer shall pay all fees specified in each Order and any applicable additional fees if the Customer exceeds the allotted capacity or other applicable limits specified in the Order. Except as otherwise specified herein or in an Order (i) fees are payable in United States dollars, (ii) fees are based on Services purchased, regardless of usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) the Subscription Services purchased cannot be decreased during the relevant Subscription Term by more than 15%. For Professional Services the Customer shall reimburse Squiz for reasonable out-of-pocket expenses incurred by Squiz in connection with its performance of Services. Squiz will provide the Customer with reasonably detailed invoices for such expenses. All amounts payable by the Customer under this Agreement must be made without setoff or counterclaim, and without any deduction or withholding.

    5.2. Invoicing and Payment. Unless otherwise specified in an Order, fees for Subscription Services specified in an Order will be invoiced annually in advance, fees for overages will be calculated and invoiced monthly in arrears, and, unless otherwise set forth in an Order, all fees and expenses for standard Professional Services as described in Section 5.1 shall be invoiced upon completion, and all fees and expenses for other Professional Services as described in 4.2 will be invoiced monthly in arrears on a time and materials basis. Except as otherwise stated in the applicable Order, the Customer agrees to pay all invoiced amounts within 30 days of invoice date. If the Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or at law, Squiz reserves the right to suspend the Subscription Services upon 30 days notice, until such amounts are paid in full.

    5.3. Taxes. Fees for Services exclude all sales, value added, goods and services, and other taxes and duties imposed with respect to the sale, supply, delivery, or use of any product or Services under this Agreement. Unless the Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, the Customer is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, goods and services, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, "Taxes") arising in connection with this Agreement, except any taxes assessed on Squiz’s net income. If Squiz is required to directly pay or collect Taxes related to the Customer’s use or receipt of the Services hereunder, the Customer agrees to promptly reimburse Squiz for any amounts paid by Squiz.

    5.4. Changes in Fees. Squiz may change the pricing applicable to the renewal of any then-current Subscription Term by providing the Customer with notice thereof, including by email, at least 45 days prior to the end of such term.
  6. PROPRIETARY RIGHTS

    6.1. Squiz Materials. Except for the rights expressly granted under this Agreement, Squiz and its licensors retain all right, title and interest in and to the Squiz Materials, including all related intellectual property rights therein. Squiz reserves all rights in and to the Squiz Materials not expressly granted to the Customer under this Agreement. The Customer will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Squiz. For the avoidance of doubt, Squiz retains ownership of the Subscription Services, Deliverables and Documentation (including all Intellectual Property Rights therein, and any modification or derivative works of the foregoing). Squiz grants the Customer a licence to use the Deliverables solely for the Customer’s internal business purposes, for so long as the Customer has purchased Subscription Services in respect of which the Deliverables relate.

    6.2. Customer Data and Customer Applications. The Customer retains ownership of the Customer Data (including all intellectual property rights in the Customer Data). The Customer grants to Squiz the right to use the Customer Data to provide the Subscription Services. This includes the right to use, reproduce, distribute, modify (so as to better showcase the Customer Data, for example), and translate to provide the Subscription Services to the Customer and the Customer’s users and to improve the Subscription Services.

    6.3. Feedback. The Customer is not obliged to provide Squiz with any ideas, suggestions or proposals (“Feedback”) in respect of any Products or Services. However, if the Customer does so, then the Customer agrees that Squiz may use and disclose that Feedback, which may include commercialising that Feedback (for example, by developing new products or services).

    6.4. Anonymised information. Squiz may collect data about the Customer’s use of any Subscription Services and Professional Services (including statistical and other information related to the performance, operation and use of the Subscription Services), provided that any of the Customer’s users are not identifiable in that data. Such data will be treated as Squiz Materials and Squiz may use, and share data from the Subscription Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes. In addition, Squiz tracks and retains user logins and activity which is not anonymised in order to provide the Subscription Services, which is the only use of this information.
  7. CONFIDENTIALITY

    7.1. Restrictions on use and disclosure.
    The Receiving Party may only use the Confidential Information of the Disclosing Party for the purposes of performing its obligations and exercising its rights under this Agreement. Subject to Section 7.2, the Receiving Party must keep the Disclosing Party’s Confidential Information confidential.

    7.2. Exceptions. The Receiving Party may disclose the Confidential Information of the Disclosing Party (a) to those of its Personnel and professional advisers who need to know such information, provided that the Receiving Party ensures that those Personnel and professional advisers keep such Confidential Information confidential in accordance with this Section 7; (b) to the extent required by Law; or (c) with the prior written consent of the Disclosing Party.

    7.3. Protection of Confidential Information. The Receiving Party must take reasonable steps to protect the Confidential Information of the Disclosing Party against unauthorised use or disclosure, and in any event must take steps at least as stringent as those used by the Receiving Party to protect its own confidential information.

    7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party's cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.

    7.5 Return of Confidential Information. Upon termination or expiration of this Agreement, upon request the Receiving Party must immediately return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control.

    7.6 Right to injunctive relief. The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations under this Section 7, and that the Disclosing Party will be entitled, without waiving any of its other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction if any such breach occurs.
  8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

    8.1. Squiz Representations & Warranties. Squiz represents and warrants that (i) Squiz has the legal authority to enter into this Agreement, (ii) the Subscription Services will materially conform with the relevant Documentation, (iii) the functionality and security of the Subscription Services will not be materially decreased during a Subscription Term, and (iv) Squiz will provide any Professional Services (a) with due skill and care and to the best of our knowledge and expertise; (b) in accordance with applicable industry standards, standard industry practice and guidelines; (c) in accordance with all applicable Laws; and (d) otherwise on the terms of this Agreement.

    8.2. Remedies. For any failure of any Subscription Services or Professional Services, as applicable, to conform to their respective warranties, Squiz’s liability and the Customer’s sole and exclusive remedy shall be for Squiz, in the case of a breach of the warranty set forth in Section 8.1 (ii), (iii), and/or (iv), to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Section 8.1 (iv) to re-perform the affected Professional Services. If the foregoing remedies are not commercially practicable, Squiz may, in its sole discretion, terminate the applicable Order or SOW upon providing the Customer with written notice thereof, and, as the Customer’s sole and exclusive remedy, refund to the Customer (a) in the case of breach of the warranty set forth in Section 8.1(ii) or (iii), any Subscription Services fees paid by the Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming Subscription Services; or (b) in the case of breach of the warranties set forth in Section 8.1(iv), any fees paid by the Customer for the portion of Professional Services giving rise to the breach.

    8.3. The Customer Representations & Warranties. The Customer represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations.

    8.4. Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, SQUIZ MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND SQUIZ HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED.
  9. MUTUAL INDEMNIFICATION

    9.1. Indemnification by Squiz. Squiz shall indemnify, defend and hold the Customer harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against the Customer by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a "Claim Against the Customer"); provided that the Customer (a) promptly gives Squiz written notice of the Claim Against the Customer; (b) gives Squiz sole control of the defense and settlement of the Claim Against the Customer (provided that Squiz may not settle any Claim against the Customer unless the settlement unconditionally releases the Customer of all liability); and (c) provides to Squiz all reasonable assistance, at Squiz’s expense. In the event of a Claim Against the Customer, or if Squiz reasonably believes the Subscription Services may infringe or misappropriate, Squiz may, in Squiz’s sole discretion, and at no cost to the Customer (i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching Squiz’s warranties hereunder, (ii) obtain a license for the Customer’s continued use of Subscription Services in accordance with this Agreement, or (iii) terminate the Customer’s subscriptions for such Subscription Services and refund to the Customer any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Notwithstanding the foregoing, Squiz shall have no obligation to indemnify, defend, or hold the Customer harmless from any Claim against the Customer to the extent it arises from (i) the Customer Data or the Customer Applications, (ii) use by the Customer after notice by Squiz to discontinue use of all or a portion of the Subscription Services, (iii) use of Subscription Services by the Customer in combination with equipment or software not supplied by Squiz where the Subscription Service itself would not be infringing, (iv) or the Customer’s breach of this Agreement.

    9.2. Indemnification by the Customer. The Customer shall indemnify, defend and hold Squiz harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Squiz by a third party alleging that the Customer Data or the Customer Application violates applicable law or a third party’s rights (a "Claim Against Squiz"); provided that Squiz (a) promptly gives the Customer written notice of the Claim Against Squiz; (b) gives the Customer sole control of the defense and settlement of the Claim Against Squiz (provided that the Customer may not settle any Claim Against Squiz unless the settlement unconditionally releases Squiz of all liability); and (c) provides to the Customer all reasonable assistance, at the Customer’s expense.

    9.3. Exclusive Remedy. This Section 9 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 this Section.
  10. LIMITATION OF LIABILITY

    10.1. Limitation of Liability. OTHER THAN EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 9 (MUTUAL INDEMNIFICATION), AND TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY'S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES IN RESPECT OF WHICH THE RELEVANT CLAIM RELATES, UNDER THE APPLICABLE ORDER AND/OR SOW, IN THE 12 MONTHS PRECEDING THE FIRST RELEVANT EVENT THAT GIVES RISE TO THE LIABILITY.

    10.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS, OR FOR ANY PUNITIVE, EXEMPLARY OR AGGREVATED DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH LOSS OR DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
  11. TERM AND TERMINATION

    11.1. Term of Agreement. This Agreement commences on the Effective Date of the first Order under this Agreement and will continue until the expiry or termination of the last Order under this Agreement, unless otherwise terminated in accordance with Section 11.4, or by written agreement by both parties.

    11.2. Term of Orders. Unless stated otherwise in an Order, an Order commences on the applicable Effective Date and will continue for the period specified in the Order, or if no period is specified, for a period of 12 months, until otherwise terminated in accordance with Section 11.4, or by written agreement by both parties.

    11.3. Automatic Renewal of Subscription Services. Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive one-year periods, unless and until terminated by either party in accordance herewith or unless either party provides written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term.

    11.4. Termination. A party may terminate this Agreement (or, at such party’s option or an individual Order affected by the applicable breach), for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such same 30 day period, or (ii) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of this Agreement results in the termination of all then-current Orders. Squiz may terminate this Agreement or any individual Order for any reason upon providing 30 days written notice. Upon termination of the Agreement, or an individual Order for cause by the Customer and upon the Customer’s written request, Squiz shall refund, on a pro rata basis, any fees paid thereunder that cover the remainder of the applicable Subscription Term after the effective date of termination. Upon termination of the Agreement, or an individual Order for cause by Squiz, all amounts owed by the Customer thereunder shall become due and payable. In no event shall any termination relieve the Customer of the obligation to pay all fees payable to Squiz for the period prior to the effective date of termination.

    11.5. Suspension. Squiz may suspend Customer’s use or access of the Subscription Services if, in our reasonable opinion:
    a) a serious threat to the performance, functionality or security of the Subscription Services is about to occur and suspension is necessary to address that threat; or
    b) Customer is in breach of the terms of this Agreement. This does not prevent Squiz from taking any other action in relation to the breach.
    In the case of a) above Squiz will use reasonable endeavours to lift the suspension as soon as reasonably practicable.

    11.6. Data Portability and Deletion. Upon request made by the Customer within 30 days of termination or expiration of the Subscription Services, Squiz will make the Customer Data and the Customer Applications that are in the Subscription Services available to the Customer for export or download, as provided in the Documentation. At the end of such 30 day period, Squiz may delete or otherwise render inaccessible any Customer Data and the Customer Applications, unless legally prohibited. Squiz has no obligation to retain the Customer Data for the Customer after this 30 day post termination period.

    11.7. Survival. Section 6 (Proprietary Rights), 7 (Confidentiality), 8.4 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.
  12. NOTICES, GOVERNING LAW AND JURISDICTION

    12.1. Notice. A notice, consent or other communication under this Agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address. It is regarded as received at the time and on the day it is actually received, but if it is received on a day that is not a Business Day or after 5.00 pm on a Business Day it is regarded as received at 9.00 am on the following Business Day. A party’s address and email address are those set out in the Order, unless the party has notified a changed address or email address, then the notice, consent, approval or other communication must be to that address or email address.

    12.2. Squiz Contracting Party. The Squiz contracting party means the party identified in the table below, based on the Customer’s account country (the country of the entity which holds the Customer’s account). If the Customer changes its account country to one identified to a different Squiz contracting party below, the Customer agrees that this Agreement is then novated to the new Squiz Contracting Party without any further action required by either party.

    Account Country

    Squiz Contracting Party

    Email

    Mailing Address

    Any country within North America

    Squiz Inc

    subscriptions-us@squiz.net

    575 5th Avenue

    14th Floor

    New York, NY 10017

    Any country within the United Kingdom or Europe

    Squiz UK

    subscriptions-emea@squiz.net

     

    New Zealand

    Squiz Limited.

    subscriptions-nz@squiz.net

     

    Any other country

    Squiz Australia Pty Ltd

    subscriptions-au@squiz.net

     

    12.3. Governing Law and Jurisdiction. For each Squiz contracting party, the laws and courts set forth in the following table:

    Squiz Contracting Party

    Governing Laws

    Governing Courts

    Squiz Inc

    The laws of the New York State

    The courts in the district of New York

    Squiz UK

    The laws of England and Wales

    The courts of England and Wales

    Squiz Limited

    The laws of New Zealand

    The courts of New Zealand

    Squiz Australia Pty Ltd

    The laws of NSW

    The courts of NSW and the Commonwealth of Australia.


    Each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. The parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal, or national court of competent jurisdiction, without bond and without the necessity of showing actual monetary damages.

    The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement.

    12.4. 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.

    12.5. Dispute Resolution. If there is any dispute arising out of or in connection with this Agreement:

    (a) the party raising the dispute must notify the other party in writing that a dispute exists, with sufficient detail to enable the dispute to be considered (Dispute Notice); and

    (b) the parties must then meet to discuss and attempt to resolve the dispute.

    If a dispute is not resolved within 10 Business Days after the date of the Dispute Notice, then either party may notify the other party that it wishes to refer the dispute to each party’s senior executives to resolve the dispute. If such a notice is given, then each party must nominate a senior executive to seek to resolve the dispute. The meeting between the parties’ senior executives must occur within 5 Business Days of the notice described in this paragraph. If a dispute is not resolved within 5 Business Days of the meeting of the parties’ senior executives, then either party refer the dispute to mediation. The mediation must be conducted in the city of the appropriate Squiz Contracting Party, and the mediation is to be administered by the following bodies:

    Squiz Contracting Party

    Location

    Dispute Resolution Body

    Squiz Inc

    New York, New York

    Alternative Dispute Resolution Committee

    Squiz UK

    London, England

    The Chartered Institute of Arbitrators

    Squiz Limited

    Wellington, New Zealand

    Arbitrators and Mediators Institute of New Zealand

    Squiz Australia Pty Ltd

    Sydney, NSW

    Law Society of NSW


    Alternative Dispute Resolution Committee (ADRC) in New York, in accordance with the Guidelines for Commercial Mediation operating at the time the matter is referred to the ADRC. Nothing in this clause prevents either party from commencing any proceedings at any time for urgent interim relief in any court or tribunal having jurisdiction over such action or proceeding. A party may not start court proceedings (except for urgent relief as described in this clause) until:

    (i) both the escalation process and mediation described in this clause has come to an end (and, for clarity, if neither party refers a dispute to mediation, then a party may not start court proceedings in respect of that dispute); or

    (ii) a party breaches this clause.

    12.6. Obligations continue

    Each party must continue to perform their respective obligations under this Agreement pending the resolution of a dispute.
  13. GENERAL PROVISIONS

    13.1. Import and Export Compliance. Each party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations. Export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (EAR), the Department of State International Traffic in Arms Regulations (ITAR), and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control (OFAC), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Each party represents that it is not named on any U.S. government denied-party list. The Customer shall not permit users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

    13.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.

    13.3. Federal Government End Use Provisions (only applicable for the U.S.). If the Services are being or have been acquired with U.S. Federal Government funds, or the Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data, manuals or Squiz Property is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995), as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software and Services with only those rights set forth in this Agreement and any amendment hereto.

    13.4. Subcontracting. Squiz’s Affiliates and its Authorized Contractors may perform certain aspects of the Services provided that Squiz remains fully liable for the actions of its Affiliates and Authorized Contractors in relation to the Services and is responsible for ensuring that any of Squiz’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement.

    13.5. 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.

    13.6. Non-Solicitation. The Customer agrees that during the term of each Order and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed by Squiz who participated in the performance of Services under the applicable Order. Nothing in this clause shall be construed to prohibit individual Squiz employees from responding to public employment advertisements, postings or job fairs of the Customer, provided such response is not prompted by the Customer intentionally circumventing the restrictions of this Section.

    13.7. No Third-Party Beneficiaries.
    There are no third-party beneficiaries to this Agreement.

    13.8. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

    13.9. Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.

    13.10. 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.

    13.11. Assignment. Neither party may assign or novate this Agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of each other party which consent may not be unreasonably withheld.

    13.12. Publicity. Neither party may make any public statement (whether written or verbal) about this Agreement, or anything related to the subject matter of this Agreement, without the prior written consent of the other party.

    13.13. Changes. Changes to an SOW or Order will require, and shall become effective only when, fully documented in a written change order (each a “Change Order”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement.

    13.14. Entire Agreement. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of any Order, the Documentation or any other part of this Agreement, then (i) the terms of the Order, (including any incorporated SOW), shall prevail over the Documentation and any other part of this Agreement, and (ii) the terms of the Documentation shall prevail over any other part of this Agreement (excluding the Orders). Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order, remittance advice, acceptance certificate payment system, other order documentation or other document that the Customer provides to Squiz (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
  14. DEFINITIONS.

    "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

    “Authorized Contractors” means independent contractors, licensors or subcontractors that assist Squiz in the delivery of the Services.

    “Confidential Information” means in relation to the Disclosing Party, information that (i) is by its nature confidential; (ii) is designated by the Disclosing Party as confidential; or (iii) the Receiving Party knows or ought to know is confidential, and includes: (iv) information comprised in or relating to any Intellectual Property Rights of the Party; (v) information relating to the financial position of the Disclosing Party and in particular includes information relating to the assets or liabilities of the Disclosing Party and any other matter that does or may affect the position or reputation of the Disclosing Party; (vi) information relating to the internal management and structure of the Disclosing Party, or the personnel, policies and strategies of the Disclosing Party; (vii) information of the Disclosing Party to which the Receiving Party has access other than information referred to in (iv), (v) and (vi) that has any actual or potential commercial value to the Disclosing Party or to the person or corporation which supplied that information; (viii) where the Customer is the Disclosing Party, information relating to the policies, strategies, practices and procedures of the Disclosing Party in our possession; and (ix) information in the Receiving Party’s possession relating to the Disclosing Party’s clients or suppliers, and like information.

    “Customer Applications” means all software programs that the Customer uses on the cloud platform comprising part of the Subscription Services. Subscription Services do not fall within the meaning of the Customer Applications.

    "Customer Data" means all data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used by the Customer or any of its users, with the Subscription Services.

    “Data Center Region” refers to the geographic region in which the Customer Data is housed.

    “Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Professional Services.

    “Deployment Model” means the hosting option used by the Customer.

    “Disclosing Party” is the party disclosing Confidential Information to the Receiving Party.

    “Documentation” means Squiz’s product guides and other end user documentation for the Subscription Services available online and through the help feature of the Subscription Services, as may be updated by Squiz from time to reflect the then-current Subscription Services. The Documentation also includes the Support Agreement, Acceptable Use Policy, Security Annex and Privacy Policy.

    “Effective Date” means, in respect of an Order, the date that Order commences, as stated in that Order.

    “Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Squiz and the Customer from time to time, including any SOW, addenda and supplements thereto. The Customer Affiliates may purchase Services subject to this Agreement by entering into Orders with Squiz. An Order is not entered into by the parties until Squiz provides written confirmation to the Customer that it has accepted the Order submitted by the Customer.

    “Professional Services” means fee-based migration, implementation, training or consulting services that Squiz performs as described in an Order or SOW, but excluding Support Services.

    “Receiving Party” is the party receiving Confidential Information from the Disclosing Party.

    “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in the EU General Data Protection Regulation or any successor Laws).

    “Security Annex” means the document at https://www.squiz.net/policies/squiz-security-annex.

    "Services" means the Subscription Services, Professional Services and Support Services that the Customer may purchase under an Order.

    “Squiz Contracting Party” means the party set out in Section 12.12.

    “Squiz Materials” means any software, documentation or other material or documents in whatever form that Squiz provide to Customer, including any Subscription Services, Services, Deliverables and any other materials that is created by or on behalf of Squiz in connection with this Agreement.

    “SOW” means a statement of work describing Professional Services to be provided by Squiz to the Customer.

    “Subscription Services” means the cloud platform made available by Squiz to the Customer, the software made available by Squiz to the Customer online via the Customer logins and/or associated Support Services, as ordered by the Customer under an Order, as applicable.

    “Support Services” means the level of support services purchased by the Customer pursuant to an Order.

    “Subscription Term” means the term of Subscription Services purchased by the Customer which shall commence on the start date specified in the applicable Order and continue for the subscription term specified therein, unless terminated or renewed in accordance with this Agreement.

    “Support Agreement” means the document located at https://www.squiz.net/policies/support-agreement.

    “Usage Metrics” means the measurement used for determining the amount of the Subscription Services the Customer can use.
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