SITEPRO® - SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S USE OF THE SITEPRO SOFTWARE-ENABLED TECHNOLOGY SOLUTION(S) MADE AVAILABLE TO CUSTOMER AS A SERVICE.
CUSTOMER ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT, BY (1) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, (2) CLICKING A BOX INDICATING ACCEPTANCE WHEN ORDERING SERVICES ONLINE, OR (3) USING THE SERVICES. THIS AGREEMENT, ALONG WITH ANY ORDERSS ENTERED INTO IN CONNECTION HEREWITH, AS WELL AS ANY OTHER DOCUMENT INCORPORATED INTO THIS AGREEMENT OR ANY ORDER, FORM A BINDING CONTRACT BETWEEN SITEPRO AND CUSTOMER.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF THE CUSTOMER REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF.
Customer’s right to access and use the Software is governed by all of the terms and conditions in the SitePro Subscription Agreement (“Subscription Terms”). The Subscription Terms are available at [https://www.sitepro.com/terms-of-service/] and are incorporated into any applicable Order by reference. A copy of the Subscription Terms will also be provided on request and may also be included in the proposal agreed to by SitePro and Customer. The Order, the Subscription Terms, and any other document incorporated by reference into the Subscription Terms form a binding agreement between SitePro and Customer.
SitePro also may revise this Agreement from time to time in SitePro’s sole discretion, subject to applicable law. All future access and use of the Services by Customer will be subject to the version of this Agreement in effect at the time of such access or use. If SitePro revises this Agreement, SitePro will post the revised version on its website. Customer will be free to decide whether or not to accept the revised version of this Agreement but accepting the revised Agreement will be required for Customer to continue accessing or using the Services. IF CUSTOMER DOES NOT AGREE TO THE REVISED VERSION OF THIS AGREEMENT, CUSTOMER’S SOLE RECOURSE WILL BE TO TERMINATE ALL ACCESS OR USE OF THE SERVICES BY CUSTOMER.
This Agreement was last updated on January 15, 2021.
“Agreement” means this Subscription Agreement, including all Orders executed in connection herewith and any other document incorporated by reference herein or into any Order.
“Customer” means the company, business or other legal entity that causes a duly authorized representative to accept this Agreement on its behalf.
“Customer Data” means electronic data and information submitted to SitePro by or on behalf of the Customer.
“Documentation” means user manuals, technical manuals and any other materials provided by SitePro, in printed, electronic or other form, that describe the installation, operation, use, or technical specifications of the Software or Services.
“Order” means an ordering document, proposal, or other form, in print or electronic format, that specifies the Software and Services to be provided under this Agreement, which is entered into between Customer and SitePro, including any addenda and supplements thereto.
“Services” means the software-enabled product offerings made available to Customer as a service in accordance with this Agreement, as specified in an Order entered into by Customer and SitePro.
“SitePro” means SitePro, Inc.
“Software” means the proprietary software solutions of SitePro and its licensors that are made available to Customer as a part of the Services.
“User” means an individual who is authorized by Customer to use the Services. Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2.1 Provision of Services. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), SitePro will: (a) make the Services available to Customer pursuant to this Agreement, and the applicable Orders and Documentation: and (b) provide applicable SitePro standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased. SitePro may, in its sole discretion, modify, enhance and/or expand the Services by adding or removing features and functionalities without prior notice to Customer. SitePro may also modify, enhance, or expand the Services by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional features and functionality may be added by mutual written agreement of the parties. Customer acknowledges that its purchase of Services hereunder is not contingent on the delivery of any future functionality or features.
2.2 License Grant. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees, SitePro hereby grants to Customer, during the subscription term(s) set forth in each applicable Order, a limited, non-exclusive, non-sublicensable and non-transferrable license to access and use the Services, solely for Customer’s operation of its facilities and its other internal business operations.
2.3 Availability. SitePro will use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which SitePro shall give advance electronic notice); and (b) any unavailability caused by circumstances beyond SitePro’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving SitePro employees), Internet service provider failure or delay, or denial of service attack. Customer acknowledges that 24×7 availability of the Services is only a goal and SitePro does not represent or guarantee that such goal will be achieved at all times.
2.4 Purchase of Equipment and Other Services.This Agreement relates solely to the purchase and provision of the Services described herein and in any Order. If Customer purchases equipment, professional services (e.g. training or implementation), managed services or any other services from SitePro, all such purchases shall be made pursuant to separate agreement(s) and terms agreed to by Customer and SitePro.
3. USE OF SERVICES
3.1 Unless otherwise provided in the applicable Order, Services are purchased as subscriptions for the subscription term stated in the applicable Order.
3.2 Usage Limits. Services are subject to usage limits specified in Orders. Such usage limits may include, but are not limited to, the number of Customer locations for which the Services can be accessed or used, and/or the maximum number of Users that can access and use the Services, the number of automation points measured and monitored, or any other constraint as agreed to by both parties and documented on the applicable Order. If Customer’s use of the Services exceeds any of the usage limitations set forth in the Order, then upon notice, SitePro may invoice Customer for such excess usage and Customer agrees to pay the additional Fees in the manner provided herein. Each User must have a unique user identification and password, which may not be shared.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Orders, (b) be responsible for the accuracy, quality and legality of the Customer Data, the means by which Customer acquires the Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any non-SitePro applications with which Customer uses Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify SitePro promptly of any such unauthorized access or use, and (d) use Services only in accordance with this Agreement, Documentation, Orders and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or its Users that in SitePro’s judgment threatens the security, integrity or availability of SitePro’s services, may result in SitePro’s immediate suspension of the Services; provided, however, that SitePro will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (a) make the Services or the Software available to anyone other than Customer or its Users, or use the Services for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include the Services or the Software in a service bureau or outsourcing offering, (c) use the Services or the Software 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 Services or the Software to store or transmit code, files, scripts, agents or programs that are intended to do harm (including, for example, viruses, worms, time bombs, and Trojan horses), (e) interfere with or disrupt the integrity or performance of the Services, Software, or third-party data contained therein, (f) attempt to gain unauthorized access to the Services, the Software, or its related systems or networks, (g) permit direct or indirect access to or use of the Services or the Software in a way that circumvents a contractual usage limit, or use the Services to access or use any of SitePro intellectual property except as permitted under this Agreement, (h) modify, copy, or create derivative works based on the Services or the Software or any part, feature, function or user interface thereof, or (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or the Software. In the event Customer is in breach of any of the Usage Restrictions provided above, in addition to all other rights and remedies which SitePro may have, SitePro may, without terminating this Agreement, and in its sole discretion and without notice to Customer, suspend the Services.
3.5 Access to Services.Customer shall not access or attempt to access the Services by any means other than the web interface, applications, mobile application(s), or any SitePro branded devices provided by SitePro or attempt to circumvent or disable any access or use restrictions or security mechanisms put in place by SitePro or its licensors. Unless otherwise specified in an Order, Customer is responsible for obtaining the data network access necessary to use the Services. Mobile network data and messaging rates and fees may apply if you access or use the Services from a wireless device. Unless otherwise specified in an Order, Customer is responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto; provided that, SitePro may recommend compatible hardware or devices necessary to use the Technology Services. SitePro does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. SitePro’s direct competitors are prohibited from accessing the Services, except with SitePro’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.
3.6 If Customer includes any data provided by SitePro in any materials, whether in written or electronic form, that are published or disclosed to any third party, Customer agrees to credit SitePro as the source of such data by providing attribution as follows: “Data provided by SITEPRO®”.
3.7 No Sensitive Information. The Services have not been designed to process or manage sensitive information (e.g., personally identifiable information, financial information, protected health information). Customer agrees not to use the Services to collect, manage or process sensitive information. SitePro specifically disclaims any liability that may result from Customer’s use of the Services to collect, process, or manage sensitive information
4. NON-SITEPRO PRODUCTS AND SERVICES
4.1 Non-SitePro Products and Services. SitePro or third parties may from time-to-time make third-party products or services available to Customer, including, for example, non-SitePro applications and services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-SitePro provider, product or service is solely between Customer and the applicable non-SitePro provider. SitePro does not warrant or support non-SitePro applications or other non-SitePro products or services, whether or not they are designated by SitePro as “certified” or otherwise, unless expressly agreed otherwise in writing. SitePro is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such non-SitePro application or its provider.
4.2 Integration with Non-SitePro The Services may contain features designed to interoperate with non-SitePro applications. SitePro cannot guarantee the continued availability of such features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a non-SitePro application ceases to make the non-SitePro application available for interoperation with the corresponding Service features in a manner acceptable to SitePro.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified in each Order (the “Fees”). Except as otherwise specified herein or in an Order, (a) payment obligations are non-cancelable and fees paid are non-refundable, and (b) quantities purchased cannot be decreased during the relevant subscription term. Notwithstanding the foregoing if cancellation occurs pursuant to Section 11.3 due to a breach of this Agreement by SitePro, Customer shall have to right to receive a pro-rata refund for the Technology Service subscription period during which the termination occurs.
5.2 Invoicing and Payment. Invoicing frequency shall be as set forth in the applicable Order. Unless otherwise specified in an Order, SitePro will invoice Customer for Fees on an annual basis. All invoices are due and payable within thirty (30) days following Customer’s receipt of the invoice. Customer is responsible for providing complete and accurate billing and contact information to SitePro and notifying SitePro of any changes to such information. If customer believes that SitePro Inc has billed Customer incorrectly, Customer must contact SitePro no later than sixty (60) days following the receipt of the applicable invoice in order to receive an adjustment or credit.
5.3 Overdue Charges. If any invoiced amount is not received by SitePro by the due date and is not cured within ten (10) days after written notice by SitePro, then without limiting SitePro’s rights or remedies, (a) those 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, and/or (b) SitePro may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 5.2.
5.4 Suspension of Service. If any charge owing by Customer under this Agreement or any other agreement for services is 30 days or more overdue and is not cured within ten (10) days after written notice by SitePro, SitePro may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full. If Services are suspended for non-payment, SitePro may charge a re-activation fee to reinstate the suspended Services.
5.5 Taxes. SitePro's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If SitePro has the legal obligation to collect and remit Taxes for which Customer is responsible under this section, SitePro will will list such Taxes as a separate line item on the applicable invoice and Customer will pay that amount unless Customer provides SitePro with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SitePro is solely responsible for taxes assessable against it based on its income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know‐how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared on behalf of the Customer in the course of providing the SitePro Services, including any items identified as such in the Order shall be owned by SitePro. SitePro hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license under any Intellectual Property Rights of SitePro that are embodied in any work product provided by SitePro to Customer hereunder to the limited extent necessary to enable Customer to make reasonable use of such work product for the duration of the applicable Order. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 License to Use Customer Data. Customer grants SitePro and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Customer Data to provide and ensure proper operation of the Services in accordance with this Agreement. To be clear, such license only pertains to services being provided to Customer, this does not grant a license to host, copy, use, transmit, and/or display any Customer Data to any third-parties (other than the use of aggregate, anonymized data in accordance with Section 6.5). Subject to the limited licenses granted herein, SitePro acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
6.3 License to Use Feedback. Customer grants to SitePro a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services and the Software any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the SitePro Services.
6.4 Collection and Use of Information. Notwithstanding anything in this Agreement to the contrary, SitePro shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Software and related systems and technologies (including, without limitation, information concerning Customer Data and data that is based on or derived therefrom, such as aggregate, anonymized data), and SitePro shall also have the right (during and after the term hereof) to use such information and data for any purpose, including, without limitation, to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other SitePro offerings, so long as it doesn’t disclose the Confidential Information of Customer.
7.1 Definition of Confidential Information. “Confidential Information” means all 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. Confidential Information of Customer includes Customer data that is not otherwise aggregated or anonymized by the Services in accordance with Section 6.5. Confidential Information of SitePro includes the Services and the Software, and the terms and conditions of all Orders (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights, title and interest, including intellectual property rights, in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Receiving Party will: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who are informed of the confidentiality provisions hereunder.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
7.4 Non-Solicit. During the course of this Agreement as well as during a period of one year following the termination of this Agreement, Customer shall not in any way, directly or indirectly, approach or entice away any employees of SitePro to terminate their employment agreement with SitePro or to enter into an agreement with Customer.
8. SERVICES WARRANTIES, REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Services. SitePro warrants that during an applicable subscription term the Services will operate in accordance with the applicable Documentation in all material respects. THE FOREGOING WARRANTY DOES NOT APPLY, AND SITEPRO STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY NON-SITEPRO APPLICATIONS. The warranty set forth in this Section 8.2 will not apply, and will become null and void, if Customer breaches any provision of this Agreement, or if Customer, any User or any other person provided access to the Services by Customer or any User, whether or not in violation of this Agreement accesses or uses the Services on or in connection with any hardware or software not specified in the Documentation or expressly authorized by SitePro in writing.
8.3 Remedies. If the Services covered by the warranty set forth in Section 8.2 fail to perform materially in accordance with the applicable Documentation, and such failure is not excluded from warranty pursuant to Section 8.2, SitePro will, subject to Customer’s promptly notifying SitePro in writing of such failure, at its sole option, either: (i) repair or replace the Services, provided that Customer provides SitePro with all information SitePro requests to resolve the reported failure, including sufficient information to enable SitePro to recreate such failure; or (ii) provide a prorated refund of pre-paid Fees for Services not yet rendered, subject to Customer’s ceasing all use of the Services. THE REMEDIES SET FORTH IN THIS SECTION 8.3 ARE CUSTOMER’S SOLE REMEDIES AND SITEPRO’S SOLE LIABILITY UNDER THIS AGREEMENT.
8.4 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SITEPRO, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY AND ALL OF THE SERVICES, SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SITEPRO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT ANY OF THE SERVICES, SOFTWARE OR DOCUMENTATION WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9.1 Indemnification by SitePro. SitePro will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (an “Infringement Claim”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by SitePro in writing of an Infringement Claim, provided that Customer (a) promptly gives SitePro written notice of the Infringement Claim, (b) gives SitePro sole control of the defense and settlement of the Infringement Claim (except that SitePro may not settle any Infringement Claim unless it unconditionally releases Customer of all liability), and (c) gives SitePro all reasonable assistance, at SitePro’s expense, in connection with the defense of the Infringement Claim. If SitePro receives information about an infringement or misappropriation claim related to the Services, SitePro may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Infringement Claim; (2) an Infringement Claim arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by SitePro, if the Services or use thereof would not infringe without such combination; (3) an Infringement Claim arises from Services under an Order for which there is no charge; or (4) an Infringement Claim arises from a non-SitePro application or Customer’s breach of this Agreement.
9.2 Indemnification by Customer. Customer will defend SitePro against any claim, demand, suit or proceeding made or brought against SitePro by a third party that: (a) alleges that (i) any Customer Data or Customer’s use of Customer Data with the Services, (ii) a non-SitePro application provided by Customer, or (iii) the combination of a non-SitePro application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights; or (b) arises from Customer’s use of the Services in an unlawful manner or in violation of the Agreement (each a “Claim Against SitePro”), and will indemnify SitePro from any damages, attorney fees and costs finally awarded against SitePro as a result of, or for any amounts paid by SitePro under a settlement approved by Customer in writing of, a Claim Against SitePro, provided that SitePro (1) promptly gives Customer written notice of the Claim Against SitePro, (2) gives Customer sole control of the defense and settlement of the Claim Against SitePro (except that Customer may not settle any Claim Against SitePro unless it unconditionally releases SitePro of all liability), and (3) gives Customer all reasonable assistance, at Customer’s expense, in the defense of the Claim Against SitePro. The above defense and indemnification obligations do not apply if a Claim Against SitePro arises from SitePro’s breach of this Agreement.
9.3 Exclusive Remedy. The remedies set forth in this Section 9 state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this Section.
10. LIMITATIONS OF LIABILITY
10.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL SITEPRO, OR ANY OF ITS LICENSORS AND SUPPLIERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER THEORY, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES; (B) LOSS OF BUSINESS BY CUSTOMER, ERROR OR INTERRUPTION OF USE OF THE SERVICES, LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (C) ANY MATTER BEYOND ITS REASONABLE CONTROL; IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO SITEPRO DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM FOR THE SITEPRO SERVICES PROVIDED UNDER THE RELATED ORDER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Subscription(s). The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is longer), unless either party gives the other written notice of non-renewal (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at SitePro’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Termination. A party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
11.4 Payment upon Termination. If this Agreement is terminated by SitePro in accordance with Section 11.3, Customer will pay any unpaid fees covering the remainder of the term of all Orders (the “Termination Fee”). Any Termination Fee payable under this provision shall be payable as liquidated damages to compensate SitePro for damages SitePro will suffer if this Agreement is terminated, which damages cannot be determined with reasonable certainty. It is specifically agreed that the Termination Fee represents liquidated damages and not a penalty. In no event will termination relieve Customer of its obligation to pay any fees payable to SitePro for the period prior to the effective date of the termination. If the Termination Fee is 30 days or more overdue and is not cured within ten (10) days after written notice by SitePro, SitePro may, without limiting its other rights and remedies, suspend Services or apply a lien to the applicable assets until such amounts are paid in full. If this Agreement is terminated by Customer in accordance with Section 3, SitePro will refund Customer any prepaid fees covering the remainder of the term of all Orders after the effective date of termination.
11.5 Surviving Provisions. Sections 5 (Fees and Payment), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.4 (Disclaimers), 10 (Limitations of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Surviving Provisions) and 12 (General Provisions) will survive any termination or expiration of this Subscription Agreement.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services, other SitePro technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. SitePro and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between SitePro and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Subscription Agreement.
12.4 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of Customer’s assignment of this Agreement, unless specified otherwise in an Order, Customer will pay any unpaid fees covering the remainder of the term of all Orders. If the amount of unpaid fees owing is 30 days or more overdue and is not cured within ten (10) days after written notice by SitePro, SitePro may, without limiting its other rights and remedies, suspend Services or apply a lien to the applicable assets until such amounts are paid in full. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the next business day if sent by nationally recognized overnight courier (e.g. Federal Express), or (c) except for notices of default, termination, or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices the day of sending, by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator as designated by Customer.
12.10 Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Texas in each case located in the County of Lubbock, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
12.11 Force Majeure. SitePro shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of SitePro including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock‐outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.12.12 Modification. Any modification of this Agreement or additional obligation assumed by either party in connection with this agreement shall be binding only if evidenced in writing signed by each party or an authorized representative if each party.