MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR PRODUCTS AND SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
IF YOU ARE A COMPETITOR YOU ARE NOT AUTHORIZED TO USE THIS SERVICE WITHOUT PRIOR WRITTEN APPROVAL. FURTHERMORE YOU ARE PROHIBITED FROM ACCESSING THIS SERVICE FOR PURPOSES OF BENCHMARKING, MONITORING AVAILABILITY OR ASSESSING FUNCTIONALITY FOR COMPETITIVE PURPOSES.
This Agreement was last updated on July 7, 2021. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
1. Definitions
2. Free Trial
3. Purchased Service
4. Use of the Service
5. Fees and Payment for Purchased Service
6. Proprietary Rights
7. Confidentiality
8. Warranties and Disclaimers
9. Mutual Indemnification
10. Limitation of Liability
11. Term and Termination
12. Export Compliance
13. Anti-Corruption
14. General Provisions
15. Maintenance and Support Services
16. Customer Access and Retention of Forms Data
17. Force Majeure
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Non-Vendor Applications" means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with our Service.
"Non-Vendor Services" means services that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with our Service.
"Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Purchased Service" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Services" means the products and services that are ordered by You under a free trial or an Order Form and made available by Us online or through the app stores and/or other web pages and mobile apps designated by Us, including associated offline components, as described in the User Guide. Services do not include Third Party Applications or professional services.
"User Guide" means the online user guide for the Service, accessible via login at http://www.dynoforms.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Section 2 (Free Trial) below.
"Users" means individuals who are authorized by You to use the Service, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means Blue Coast Software, Inc., a South Carolina corporation with principal offices located at 4074 Maidstone Drive, Mt. Pleasant, South Carolina 29466.
"You" or "Your" or “Customer” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. FREE TRIAL
If You register for a free trial, We will make our Service available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Service ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO OUR SERVICE, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE BY US AND/OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Service before You make Your purchase.
3. PURCHASED SERVICE
3.1. Provision of Purchased Service. We shall make the Purchased Service available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) The Service is purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre -existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
4. USE OF THE SERVICE
4.1 Your Data. You are solely responsible for your conduct, any content, data or materials uploaded into the Service, or otherwise provided for processing by the Service (collectively, “Your Data”), the content of Your Data and legality and means by which you acquired it, and all communications with others while using the Service. You are solely responsible for the availability, accuracy, appropriateness, or legality of Your Data or any other information you may access using the Service.
4.2. Our Responsibilities. We shall: (i) provide Our standard support for the Purchased Service to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Eastern Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Service only in accordance with applicable laws and government regulations.
4.3. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.4. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Service available to anyone other than Users, (b) sell, resell, rent or lease the Service without written authorization by Us, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third -party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the service purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net-30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of this Section 5.2.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give you at least 7 days’ prior notice that Your account is overdue before suspending services to You.
5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services and Products. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services and Products, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Ownership. This is a subscription agreement for use of Vendor Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to the Vendor Services and Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise and Customer agrees that Vendor or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Vendor Products, Service Descriptions, Documentation, Professional Services deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, code, reports and documentation (collectively, “Vendor Technology”). Further, Customer acknowledges that the Vendor Products are offered as an on-line, hosted solution and mobile apps, and that Customer has no right to obtain a copy of the Vendor Product itself.
6.3. Restrictions. You shall not (i) permit any third party to access the Service except as permitted herein or in an Order Form, (ii) create derivate works based on the Service except as authorized herein, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to Vendor Products, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service.
6.4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Service.
6.6. Federal Government End Use
Provisions. We
provide the Service, including related software and technology, for ultimate
federal government end use solely in accordance with the following: Government
technical data and software rights related to the Service including only those
rights customarily provided to the public as defined in this Agreement. This
customary commercial license is provided in accordance with FAR 12.211
(Technical Data) and FAR 12.212 (Software) and, for Department of Defense
transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR
227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
If a government agency has a need for rights not conveyed under these terms, it
must negotiate with Us to determine if there are acceptable terms for
transferring such rights, and a mutually acceptable written addendum
specifically conveying such rights must be included in any applicable contract
or agreement.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and is Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent. With regard to the Trade Secrets, the obligations in this Section will continue for so long as such information constitutes a trade secret under applicable law. With regard to the Confidential Information, the obligations in this Section will continue for the term of this Agreement and for a period of five years thereafter.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Service shall perform materially in accordance with the User Guide, (iii) We do not warrant that Customer’s use of the Vendor Products will be uninterrupted or error-free, nor does Vendor warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss, (iv) the functionality of the Service will not be materially decreased during a subscription term, and (v) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (v) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.4. Non-Generally Available Services. From time to time, We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-Generally Available Services"). You may accept or decline any such trial in Your sole discretion. Any Non-Generally Available Service will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-Generally Available Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GENERALLY AVAILABLE SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-Generally Available Services at any time in Our sole discretion and may never make them generally available.
9. INDEMNIFICATION
9.1 Defense and Indemnification. Subject to the remainder of this Section 9 (Indemnification), We shall defend you against any third party claim that the Service infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of the United States (“Infringement Claim”) and indemnify you from any damages and expenses (including reasonable attorney’s fees) finally awarded against you in favor of such third party by a court of competent jurisdiction or agreed to in settlement by Us. The foregoing obligations are applicable only if you: (a) promptly notify Us in writing of the Infringement Claim; (b) allow Us sole control over the defense for the claim and any settlement negotiations; and (c) reasonably cooperate in response to Our requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of Us.
9.2 Remedies. If the alleged infringing Services become, or in Our opinion are likely to become, the subject of an Infringement Claim, We will, at Our option and expense, do one of the following: (a) procure the rights necessary for you to make continued use of the affected Services; (b) replace or modify the affected Services to make it non-infringing; or (c) terminate the Ordering Document to the affected Services and discontinue the related support services, and, upon your certified deletion of the affected Services, refund a pro-rated portion of the fees paid by you for the unused, remaining portion of the Subscription Term as of the effective date of termination. Nothing in this Section 9.2 (Remedies) shall limit Our obligation under Section 9.1 (Defense and Indemnification) to defend and indemnify you, provided that you replace the allegedly infringing Services upon Us making alternate Services available to you and/or you discontinue using the allegedly infringing Services upon receiving Our notice terminating the affected Ordering Document.
9.3 Exclusions. Notwithstanding the foregoing, We will have no obligation under this Section 9.3 (Indemnification) or otherwise with respect to any claim based on: (a) a combination of Services with non-DynoForms’ products (other than non-DynoForms’ products that are listed on the Ordering Document and used in an unmodified form); (b) use for a purpose or in a manner for which the Services were not designed; (c) any modification to the Services made without Our express written approval; or (d) any Services provided on a no charge, beta or evaluation basis. THIS SECTION 9 (INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
9.4 Your Indemnification. You agree to indemnify and hold Us harmless from any damages, claims or expenses (including reasonable attorneys’ fees) arising from or related to Your Data or your violation of this Agreement.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (COLLECTIVELY, “OUR PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.
10.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANY OF OUR PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THE APPLICABLE ORDERING DOCUMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
11. TERM AND TERMINIATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Service for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may terminate this Agreement 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 period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 12 (Export Compliance), 14 (General Provisions), and 17 (Force Majeure) shall survive any termination or expiration of this Agreement.
12. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
13. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department ([www.dynoforms.com).
14. GENERAL PROVISIONS. This Agreement will be exclusively construed, governed and enforced in all respects in accordance with the internal laws (excluding all conflict of law rules) of the State of South Carolina and any applicable federal laws of the United States of America. Each party agrees that any claim or cause of action arising under or relating to this Agreement will be brought in a court of appropriate jurisdiction in the state of South Carolina. 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. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by facsimile (with confirmation copy available upon request) to the address set forth [in the signature section of this Agreement], as may be amended by the parties by written notice to the other party. You may not assign Your rights and duties under this Agreement without Our prior written consent. Any assignment in violation of this Section shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. All references to "include" and "including" shall be deemed to mean "including without limitation". Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. No modification, extension or waiver of or under this Agreement shall be valid unless made in writing and signed by an authorized representative of the party sought to be charged therewith. We shall not be liable for delay or failure in performing any of Our obligations hereunder due to causes beyond Our reasonable control. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. There are no third-party beneficiaries to this Agreement.
15. MAINTENANCE AND SUPPORT SERVICES
15.1 Maintenance and Support Services consist of the following:
a. Support: Support Services shall include: (a) Telephone and E-mail Support; (b) access to an online documentation; (c) Fixes, as developed and made generally available by Vendor in its discretion to address Errors that Customer is experiencing in using Licensed Product; and (d) New Versions, as developed and made generally available by Vendor. Support Services do not include New Products. Vendor determines, in its sole discretion, what constitutes a New Product (for which additional license fees apply), and what improvements and enhancements to existing Licensed Product functionality are to be included in a New Version (and are therefore provided at no charge to customers with a current maintenance support subscription).
b. Support Hours: Vendor will use commercially reasonable efforts to make available Technical Support Monday through Friday during Vendor’s normal business hours (8am to 6pm EST), excluding scheduled holidays.
16.1 CUSTOMER ACCESS AND RETENTION OF FORMS DATA:
Vendor will archive and maintain copies of forms data even after subscription services have expired for a minimum of 1 year after expiration of subscription. Upon written request, Customer may request export of data and/or deletion of forms data after subscription has expired for up to 1 year after expiration of subscription.
17. Force Majeure. In no event shall We be liable to You, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Our reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot, or other civil unrest, problems with telecommunication providers, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.