Terms and Conditions
By Using the SmartWorks software, you hereby agree to the following:
1. Definitions.
As used in this Agreement and in any Order Forms, the following terms will have the following meanings:
“Content” means the information, documents, software, products and services contained or made available to Subscriber in the course of using the Service;
“Customer Data” means any data, information or material provided or submitted by Subscriber to the Service in the course of using the Devices or Service;
“Early Termination Fee” (or “ETF”) means any amounts or fees owed by Subscriber upon termination or cancellation of an Order Form or this Agreement prior to the expiration of the applicable Subscription Term, including, at a minimum: (i) all remaining and unpaid Subscription Fees for the remainder of the then-current Subscription Term, and (ii) any additional hardware buy-out or recapture fees, device-return costs, or other charges that the Order Form or this Agreement identifies as part of an early termination obligation.
“Initial Term” means the initial period indicated on the applicable Order Form;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“License” means the type and number of licenses to access and use the Service as indicated on the applicable Order Form(s);
“License Administrator(s)” means those Users designated by Subscriber who are authorized to purchase licenses by executing Order Forms and to create User accounts and otherwise administer Subscriber’s access and use of the Service;
“Order Form(s)” means the Archlogix form evidencing the initial subscription for the Service, Devices and any subsequent order forms mutually executed by the parties substantially in the form set forth in Exhibit A, specifying, among other things, the number of Licenses and other Services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties. Each such Order Form will be governed by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail unless the Order Form expressly supersedes the applicable portions of this Agreement. Each Order Form constitutes an independent legal obligation between the parties;
“Services” means any services specified in the relevant Order Form(s);
“Renewal Term(s)” means any successive annual terms following the Initial Term, if applicable;
“Archlogix Technology” means all of Archlogix’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber by Archlogix in providing the Service;
“Service(s)” means the services and ancillary online or offline products and services provided to Subscriber by Archlogix, to which Subscriber is being granted access under this Agreement, including the Archlogix Support Services and any other Services specified in the relevant Order Form(s);
“Support Services” means technical support and maintenance services for the Software and Service pursuant to Archlogix’s Support Services policy as set forth in Exhibit C to this Agreement.
“Subscription Term(s)” means the Initial Term and any Renewal Term(s), if applicable; and
“User(s)” means Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and/or Devices, for whom subscriptions to the Service has been purchased by Subscriber and have been supplied user identifications and passwords by Subscriber (or by Archlogix at Subscriber’s request).
“Minimum Number of Users” means Subscriber’s minimum number of individual licenses which will be billed monthly during the Subscription Term.
2. Provision of Service(s).
Subject to the terms of this Agreement and the applicable Order Form(s) during any Subscription Term, Archlogix will provide Subscriber and its Users with access and use of the Service during the Subscription Term(s), including a browser interface and data encrypted, transmission, access and storage. Subscriber’s registration for, or use and access of, the Devices and Service shall be deemed to be Subscriber’s agreement to abide by this Agreement including any materials available on the Archlogix website incorporated by reference herein, including, but not limited to, Archlogix’s Software End-User License Agreement and privacy policies.
3. Privacy & Security; Disclosure.
Archlogix’s privacy policy may be viewed at www.Archlogix.com/privacy-policy. Archlogix reserves the right to modify its privacy policy in its reasonable discretion from time to time. Because the Service is a hosted, online application, Archlogix occasionally may need to notify all Users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
4. License Grant & Restrictions
Archlogix hereby grants Subscriber a non-exclusive, non-transferable, worldwide right to access and use the Service, solely for Subscriber’s own internal business purposes, subject to the terms and conditions of this Agreement and the number of Licenses indicated in the applicable Order Form(s). All rights not expressly granted to Subscriber are reserved by Archlogix and its licensors. This grant of License shall not be effective until Subscriber and each authorized User accepts the Software End-User License Agreement and Terms of Service upon initial login.
Subscriber and User(s) may only use the Software to enter or collect Customer Data. Subscriber may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Except as otherwise expressly set forth in this Agreement, Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Except as disclosed to and agreed by Archlogix User Licenses cannot be shared or used by more than one individual User, but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (ix) attempt to gain unauthorized access to the Service or its related systems or networks.
5. Subscriber’s Responsibilities.
Subscriber is responsible for all activity occurring under Subscriber’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber’s use of the Service, including those related to data privacy, employment and discrimination, occupational safety, health, international communications and the transmission of technical or personal data. Subscriber shall: (i) notify Archlogix immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Archlogix immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber or Subscriber’s Users; and (iii) not impersonate another Archlogix user or provide false identity information to gain access to or use the Service.
6. Archlogix’s Responsibilities
During the applicable Subscription Term, Archlogix will make the Services available to Subscriber in accordance with the terms of this Agreement, and perform the Services as specified in writing in this Agreement.
7. Account Information and Data
As between the parties, Subscriber exclusively owns all rights, title and interest in and to all Customer Data. Subscriber, not Archlogix, shall have sole responsibility for the accuracy, quality, integrity, legality, backing up, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Archlogix shall not access Subscriber’s User accounts, including Customer Data, except to respond to service or technical problems, or at Subscriber’s request, or as necessary to provide Subscriber the Services. In the event this Agreement or any Order Form is terminated, Archlogix will make available to Subscriber a file of any then existing Customer Data within 30 days of termination of the Agreement or the Order Form, as applicable, if Subscriber so requests within 30 days of the time of such termination, provided Subscriber agrees to pay any fees relating to the creation of the Customer Data file. Subscriber agrees and acknowledges that Archlogix may from time to time delete Customer Data in its sole discretion. Upon termination of this Agreement, Subscriber’s right to access or use Customer Data in the Service will immediately terminate.
8. Intellectual Property Ownership
Archlogix (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Archlogix Software, Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service, the Archlogix Technology or the Intellectual Property Rights owned by Archlogix. The Archlogix name, the Archlogix logo, and the product names associated with the Service are trademarks of Archlogix or third parties, and no right or license is granted to use them.
9. Charges and Payment of Fees; Ordering and Invoicing; Additional Licenses
a. Charges and Payment of Fees. Subscriber shall pay all fees or charges to Subscriber’s account in accordance with the fees, charges, and billing terms set forth in this Agreement and the applicable Order Form. Unless otherwise set forth herein or in the applicable Order Form, all fees are payable in U.S. Dollars. Subscriber also agrees to reimburse Archlogix for all travel related expenses (without markup) reasonably incurred in performing the Services. Except as expressly set forth herein or in the applicable Order Form, payment obligations are non-cancelable, and all amounts paid are nonrefundable. Subscriber is responsible for paying for all User licenses ordered for the entire Subscription Term, whether or not such User licenses are actively used. Additionally, if a minimum number of users is applicable, Subscriber is responsible for the minimum number of users identified in the order form for the entire Subscription Term. Except as expressly set forth in this Agreement, payment obligations are non-cancelable, and all amounts paid are nonrefundable.
b. Additional Licenses. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting Subscription Term (either Initial Term or Renewal Term, if applicable); (ii) the license fee for the added licenses will be the license fee under the applicable Order Form; and (iii) licenses added in the middle of a billing month will be charged on a pro-rated basis for that billing month. All pricing terms are confidential, and Subscriber agrees not to disclose them to any third party.
c. Billing Procedures and Compensation. Subscriber agrees to pay Archlogix for the Devices and Services during the Subscription Term in accordance with the costs and rates set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, payment shall be due 30 days from receipt of invoice for fees and expenses reimbursable under Section 9.a. Archlogix reserves the right to increase its fees upon at least 60 days prior written or emailed notice to Subscriber, with such increase automatically to be effective on the next Renewal Term.
d. Each Order Form will automatically renew at the end of the Initial Term (and thereafter) for additional Renewal Terms unless terminated by either party by at least 90 days written notice (which, in Archlogix’s case, shall include email) prior to the end of the then-current term. Archlogix will invoice Subscriber annually in advance unless otherwise set forth in the applicable Order Form. Fees will automatically increase three percent (3%) upon renewal, and other Services will be charged on an as-quoted basis. Archlogix’s fees are exclusive of all taxes, levies, withholdings or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, withholdings or duties.
e. Subscriber agrees to provide Archlogix with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Subscriber agrees to update this information within 30 days of any change to it.
f. Late Payments. Any fees not paid when due (i) shall be subject to a finance charge of 1.5% per month (or the highest rate permitted by law, if less) on the outstanding balance, plus all expenses of collection, and (ii) may result in suspension of Services after 30 days of non-payment, with written or emailed notice.
10. Term and Termination
a. Term. This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated as set forth below. Each Order Form will have its own term as specified therein.
b. Termination for Cause. This Agreement and all Order Form(s) may be terminated for cause as follows: (i) by either party upon 90 days written notice if the other party (which, in Archlogix’s case, shall include email) is in breach of any material provision of this Agreement (including non-payment of fees), unless such material breach is cured before the end of such 90 day period, (ii) for as provided in Section 12 (Termination upon Expiration/Reduction in Number of Licenses), or (iii) immediately by Archlogix for any violation by Subscriber of Archlogix’s Intellectual Property Rights.
c. Termination for Convenience. If Subscriber terminates this Agreement or any Order Form prior to the expiration of the applicable Subscription Term, Subscriber shall be liable for payment of: (i) All fees due for the remainder of the then-current Subscription Term (the “Early Termination Fees”), and (ii) Any hardware buy-out or return fees under Section 9.e if Devices are leased or subsidized. Such amounts will be due and payable immediately upon Subscriber’s notice of termination.
d. Effect of Termination. Upon any expiration or termination of this Agreement, (i) all rights and licenses granted to Subscriber under the affected Order(s) shall immediately terminate, and (ii) any rights to payment, any right of action for breach of the Agreement prior to termination shall survive, together with all other the provisions of this Agreement concerning the ongoing interests of the parties. If Archlogix terminates an Order Form for a material breach by you, then all payment obligations under the affected Order Form(s) will accelerate and become immediately due and payable. Any and all Early Termination Fees are due at the time of termination of this agreement.
e. Device Return or Buy-Out. Unless Subscriber has fully purchased the Devices upfront, upon termination or expiration of this Agreement (for any reason other than Archlogix’s uncured breach), Subscriber must promptly (and in any event within 10 business days) return all Devices at its own expense and in good working condition, normal wear and tear excepted. If Subscriber fails to timely return any Device or returns it damaged beyond normal wear and tear, Archlogix may invoice the Subscriber for the full replacement cost. If the Devices were subsidized or provided at reduced cost, Subscriber may elect to buy out the remaining balance at Archlogix’s then-current price to keep the Devices in lieu of returning them.
11. Non-Payment and Suspension
In addition to any other rights granted to Archlogix herein, Archlogix reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent (falls into arrears 90 days or more). Subscriber will continue to be charged for User licenses during any period of suspension. If Subscriber or Archlogix initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on Subscriber’s account computed in accordance with the Charges and Payment of Fees section above. Subscriber agrees that Archlogix may charge such unpaid fees to Subscriber’s credit card or otherwise bill Subscriber for such unpaid fees. Archlogix reserves the right to impose a reconnection fee in the event Subscriber are suspended and thereafter request access to the Service.
12. Termination upon Expiration/Reduction in Number of Licenses
Either party may terminate this Agreement or reduce the number of Licenses, effective only upon the expiration of the then-current Subscription Term, by notifying the other party in writing at least 90 days prior to the commencement date of the following term. If a Minimum Number of Users is set forth in the Order Form, then that number is the minimum number of Users/Licenses to which the Subscriber can reduce its User count.
13. Confidential Information
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) 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. The Receiving Party will, during the term of this Agreement, and for two years thereafter maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party: (i) will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this Agreement; and (ii) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or consultants have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Archlogix represents and warrants that (i) it will provide the Service consistent with applicable industry standards; (ii) the Service will perform materially in accordance with the online Archlogix help documentation under normal use and circumstances; and (iii) as provided by Archlogix, the Service will not contain any Malicious Code. “Malicious Code” means any software, electronic, mechanical or other means, device or function , e.g. (key node, lock, time-out, “back door,” “virus,” “trapdoor,” “booby trap,” “drop dead device,” “data scrambling device,” “Trojan Horse,”) that (i) allows Archlogix or a third party to manipulate or gain unauthorized access to any Subscriber system, (ii) contains any files or features that will disable or destroy any Subscriber data, or (iii) replicates, transmits or activates itself without control of a person operating the computing equipment on which it resides. Subscriber represents and warrants that Subscriber has not falsely identified itself nor provided any false information to gain access to the Service and that Subscriber’s billing information is correct.
Subject to the exclusions contained below, Archlogix warrants its device ("Device"), and/or certified accessories sold for use with the Device ("Accessories") to be free from defects in materials and workmanship under normal consumer usage for the term of coverage outlined below. This limited warranty is a consumer's exclusive remedy and applies as follows only to new Devices and/or new Accessories purchased by consumers in the United States or Canada.
Terms: All Devices and Accessories shall be covered under this warranty for the term of the contract from the date of purchase regardless of when the Device or Accessory is actually received. Devices provided will either be new or refurbished units.
Exclusions: The following are excluded from coverage under this warranty.
Normal Wear and Tear. Periodic maintenance, repair, and replacement of parts due to normal wear and tear are excluded from coverage.
Ornamental Decorations. Ornamental decorations such as emblems, graphics, rhinestones, jewels, gemstones and their settings, and other decorative elements, are excluded from coverage.
Abuse & Misuse. Defects or damage that result from: improper operation, storage, misuse or abuse, accident, or neglect, such as physical damage (cracks, scratches, etc.) to the surface of the product resulting from misuse. Contact with liquid, water, rain, extreme humidity or heavy perspiration, sand, dirt or the like, extreme heat, or food. Subjecting the Product or Accessory to abnormal usage or conditions; or other acts which are not the fault of Archlogix, are excluded from coverage.
Unauthorized Service or Modification. Defects or damages resulting from service, testing, adjustment, installation, maintenance, alteration, including without limitation, software changes, or modification in any way by someone other than Archlogix, or its authorized service centers, are excluded from coverage.
Altered Products. Products or Accessories with:
1. serial numbers or date tags that have been removed, altered, or obliterated.
2. broken seals or that show evidence of tampering.
3. mismatched board serial numbers; or
4. Non-conforming or non-Archlogix housings, antennas, or parts, are excluded from coverage.
Communication Services. Defects, damages, or the failure of Products, Accessories or Software due to any communication service or signal you may subscribe to or use with the Products, Accessories or Software is excluded from coverage.
Actions: Archlogix, at its option, will at no charge repair, replace or refund the purchase price of any Products, Accessories or Software that does not conform to this warranty. We may use functionally equivalent reconditioned/refurbished/pre-owned or new Products, Accessories or parts.
Coverage: Where your device will work. Services that rely on location information, such as GPS, depend on your Device's ability to acquire satellite signals (typically not available indoors) and network coverage. Network coverage and satellite signals are dependent on a number of factors not within our control including weather, topographical changes, changes to and support of network cellular technologies, the functionality of various satellites, cell towers, clouds, and other factors. You understand and expressly limit and agree to hold harmless any and all harms that result from the Device not working, malfunctioning, or failing except as specifically provided herein.
Our Service and Device are not substitutes for direct supervision. Our Service and Devices are not substitutes for responsible childcare, adult care, or any other form of monitoring for person who may or may not need competent adult supervision and should not be used as such. You agree to utilize all your best efforts to care for and tend to the dependents in your control. You may not utilize our service or device as a substitute for direct supervision and competent care. Our Device and Services may not function and is thus an ineffective substitute for adequate direct supervision and competent dependent care.
Subscriber acknowledges that all subsidized or leased Devices remain the property of Archlogix unless and until purchased outright. Subscriber bears the risk of loss or damage once Devices are delivered. Upon any expiration or termination (for any reason other than Archlogix’s uncured breach), Subscriber shall either (i) return the Devices at its own expense and in good working condition within 10 business days, or (ii) pay Archlogix the undiscounted balance or replacement cost of the Devices. Archlogix may invoice Subscriber for any unreturned or damaged Devices.
15. Indemnification
Subscriber shall indemnify and hold Archlogix, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party, Subscriber employee and User(s) claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes or the intellectual property rights of a User or third party; or (ii) violates any employment, occupational safety, health, disability, data protection or other state or federal law or regulation; (ii) a claim based on any alleged misuse or mishandling of the Service or Customer Data by Subscriber; or (iv) Subscriber’s or its Users’ misuse of the Devices or Services, including any alleged violation of a third party’s privacy rights.
Archlogix shall implement commercially reasonable measures to protect any personal data collected or processed via the Service. Subscriber agrees that it is the “data controller” with respect to any end-user or employee personal data and remains responsible for complying with all data protection laws applicable to the collection and handling of such data. Archlogix will act as a “data processor” and shall only process personal data on Subscriber’s behalf as necessary to provide the Services. If required by applicable law (e.g., GDPR), Subscriber and Archlogix shall execute a separate Data Processing Addendum.
Archlogix shall defend Subscriber or settle at its expense any claim or suit (an “Action”) against Subscriber, arising out of or in connection with an assertion that the Service or the use thereof as specifically authorized by Archlogix, infringes any U.S. patent in existence as of the Effective Date, U.S. copyright or trademark rights or misappropriates a trade secret of any third party; provided that Archlogix shall have no obligation under this Section to the extent any claim of infringement or misappropriation results from (i) use of the Services in combination with any other hardware or software supplied by any third person or entity other than Archlogix; (ii) any alteration or modification of the Services not provided Archlogix; or (iii) use of the Services in a way not intended by Archlogix or not provided for or described in the applicable documentation, if such infringement would not have occurred but for such combination, alteration, modification or unintended or unauthorized use of the Services.
Should any Device or Services become, or in Archlogix’s opinion be likely to become, the subject of an Action, Archlogix may, at its discretion, (i) obtain for Subscriber, at no additional cost, the right to continue using the Device or Services under this Agreement; (ii) modify or replace the Services to avoid such claim, or (iii) if Archlogix determines that neither (i) or (ii) is commercially practicable, terminate the license to the Services and refund the pre-paid, unused fees to Subscriber. THIS SECTION STATES ARCHLOGIX’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMED, POTENTIAL OR ACTUAL INFRINGEMENT OR FOR ANY ACTION.
As an express condition to the foregoing indemnity obligations, the party seeking indemnity shall (i) promptly notify the indemnifying party in writing of any such actual or threatened loss, suit, claim, liability, expense or proceeding, (ii) allow the indemnifying party, at its own expense, to direct the defense of such suit, claim or proceeding, (iii) give the indemnifying party all information and assistance the indemnifying party considers reasonably useful to defend such suit, claim or proceeding, and (iv) not enter into any settlement of any such suit, claim or proceeding without the indemnifying party’s written consent.
16. Disclaimer of Warranties
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.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13 OF THIS AGREEMENT AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 15 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE ORDER GIVING RISE TO THE CLAIM IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
NOTHING HEREIN WILL SERVE TO LIMIT CUSTOMER’S OBLIGATION TO PAY FEES PROPERLY DUE AND PAYABLE UNDER THIS AGREEMENT.
18. Compliance with Local Laws and Export Control Laws
Each party shall comply with applicable laws in providing and using the Devices or Service. The Devices and Service uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of other countries. Each party agrees to comply with all such laws and regulations.
Archlogix and its licensors make no representation that the Devices or Service is appropriate or available for use in other locations. Each party shall comply with all applicable laws, including without limitation, export and import regulations of other countries. Any diversion of the Content contrary to United States law or other applicable law is prohibited.
19. Notice
Archlogix may give notice by means of a general notice on the Service, electronic mail to Subscriber’s e-mail address on record in Archlogix’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in Archlogix's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Subscriber may give notice to Archlogix (such notice shall be deemed given when received by Archlogix) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Archlogix, Inc.,.
20. Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other. Either party may assign this Agreement without consent of the other party upon the merger or reorganization. Any purported assignment by either party in violation of this Section shall be void. Notwithstanding, either party may assign this Agreement without consent upon the sale of all or substantially all its assets, merger or reorganization.
21. General
This Agreement shall be governed by the laws of the State of Missouri (U.S.) law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in St. Louis County, Missouri. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Subscriber and Archlogix as a result of this Agreement or use of the Service. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to causes beyond the reasonable control of the party including but not limited to Internet outages or delays, strikes, blockade, war, riots, natural disasters or acts of God. There are no third-party beneficiaries to this Agreement. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the party against whom such modification or waiver will be enforced. This Agreement, all Order Forms and any Archlogix policies incorporated herein comprise the entire agreement between Subscriber and Archlogix regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. Without limiting the foregoing, any terms contained in Subscriber’s purchase orders or other similar documents are deemed to be for administrative convenience only and do not modify the terms of this Agreement. The terms of any such documents are deemed rejected by Archlogix. Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect.