• This agreement governs your acquisition and use of our products and services.

    By accepting this agreement, through execution of an order form referencing this agreement or through other means, 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 that entity and its affiliates to these terms and conditions, in which case the terms “You” and “Your” in this agreement refer to that entity and its affiliates. If you do not have that authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use our products or services.

    If you are accessing our product or service as part of a free trial, your free trial is governed by Section 12 (Free Trial) below, which limits our responsibility and disclaims all warranties and liability.

    You may not access our products or services if You are our direct competitor, except with our prior written consent. In addition, You may not access our products or services to monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes.

    This Agreement was last updated on November 12, 2019. It is effective between You and ComWeb Internet Solutions, Inc. as of the date You accept it.

    1. DEFINITIONS

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

    Agreement” means this Master Services Agreement, Customer Agreement and online addenda hereto that are provided by Us and accepted by You.

    Beta Services” means Our services that are not generally available to customers.

    Documentation” means the online user guides, documentation, policies, release notes, and help and training materials for the Services and ComWeb Platform, and the descriptions of Support, as updated from time to time, accessible via Our website, by request, or login to the applicable Service.

    Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

    Non-ComWeb Applications” means online applications and services and offline software products that are provided by entities or individuals other than Us, and that interoperate with the Services, including but not limited to those provided by ComWeb.

    Order Form” means the Order Form or ordering documents, specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any 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.

    ComWeb Platform” means the hosted platform-as-a-service made available by ComWeb.

    Services” means the products and services that are ordered by You under an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Non-ComWeb Applications.

    Support” means ComWeb customer support for the Services, as described in the Documentation.

    User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

    You” means the customer named above and Your Affiliates.

    Your Data” means electronic data and information submitted by or for You to the Services.

    2. OUR RESPONSIBILITIES

    2.1    Provision of Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide standard Support for the Services to You at no additional charge, and/or upgraded Support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advanced electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our 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 Our employees), Internet service provider failure or delay, Non-ComWeb Application, or denial-of-service attack. To the extent that you have purchased the Services on behalf of a client or an association, the client or the association is a responsible party under this Agreement.

    2.2    Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and Support and prevent or address service or technical problems, (b) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (c) as expressly permitted in writing by You.

    2.3    Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.

    2.4    Analytics.  We may track and analyze usage of the Services and ComWeb Platform to assist Customer, and to maintain the security of and improve the Services and ComWeb Platform. We will not share this information with third parties.

    3. USE OF SERVICES

    3.1    Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during the initial effective term at the same pricing as the underlying Master Service Agreement pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions’ discounted price will terminate on the same date as stipulated in the underlying Master Service Agreement Pricing.

    3.2    Usage Limits. Services are subject to usage limits, including, for example, quantities and/or functionality restrictions referenced in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, We will so notify You and may work with You to bring Your usage into conformity with the limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will, promptly upon Our request, execute an order form with Us and/or ComWeb, as applicable, for additional quantities of Our and/or ComWeb’s services as required, and/or pay any invoice for excess usage in accordance with the payment terms below or in Your agreement with ComWeb, as applicable.

    3.3    Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, and (d) use Services only in accordance with the Documentation and applicable laws and government regulations. You may not access the Services if You are Our competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

    3.4    Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-ComWeb Application 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 a Service or Non-ComWeb Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-ComWeb product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension. This paragraph applies equally to the ComWeb Platform as to the Services.

    4. NON-COMWEB PROVIDERS GENERALLY

    4.1    Acquisition of Non-ComWeb Products and Services. We or third parties may make available third-party products or services, including, for example, Non-ComWeb Applications and implementation and other consulting services. Except as expressly provided herein regarding the ComWeb Platform, any acquisition by You of such non-ComWeb products or services, and any exchange of data between You and any non-ComWeb provider, is solely between You and the non-ComWeb provider. We do not warrant or support Non-ComWeb Applications or other non-ComWeb products or services, whether or not they are recommended by Us or designated by Us as preferred, certified or otherwise, except as specified in an Order Form.

    4.2    Non-ComWeb Applications and Your Data. If You choose to use a Non-ComWeb Application with a Service, You grant Us permission to allow the provider of that Non-ComWeb Application to access Your Data as required for the interoperation of that Non-ComWeb Application with the Service. We are not responsible for any processing, disclosure, modification or deletion of Your Data resulting from access by a Non-ComWeb Application. The Services will allow You to restrict Users from installing or enabling Non-ComWeb Applications (other than the ComWeb Platform) for use with the Services.

    4.3    Integration with Non-ComWeb Applications. The Services may contain features designed to interoperate with Non-ComWeb Applications. To use such features, You may be required to obtain access to Non-ComWeb Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-ComWeb Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation. We will not be deemed to be in breach of this Agreement to the extent any such Service features cease to function because the provider of the corresponding Non-ComWeb Application, other than the ComWeb Platform, ceased to make their Non-ComWeb Application available for interoperation with such Service features on reasonable terms.

    5. FEES AND PAYMENT

    5.1    Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the relevant subscription term, and (iv) any community or communities added during the initial term specified in the Customer Service Agreement will be subject to the same pricing outlined in the order form. The addition of a community or multiple communities outside of the initial subscription term will be subject to our standard rates and volume discount tiers.

    5.2    Invoicing and Payment. Fees will be invoiced monthly in advance, or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date, and invoices may be sent electronically. Invoices may be paid via electronic check (ACH), credit card, or by check. The Customer agrees to a $10 service charge for all payments made by check. The Customer can set-up AutoPay by enrolling at www.comweb4me.com/autopay. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If You provide credit card information to Us, You authorize Us to charge such credit card for all purchased Services listed in the invoice for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions).

    5.3    Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) You shall pay a late fee equal to 5% of such past due charges, and/or (b) You shall pay 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 (c) 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 Services. If any charge owing by You under this or any other agreement for Our services is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Services and Support until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.

    5.5    Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or Section 5.4 (Suspension of Services) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

    5.6    Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, GST, use or withholding taxes, assessable by any jurisdiction whatsoever (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 section, We will invoice You and You will pay that amount 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 Us based on Our income, property and employees.

    5.7    Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

    6. PROPRIETARY RIGHTS AND LICENSES

    6.1    Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of their right, title and interest in and to the Services and Support, including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

    6.2    License by You to Host Your Data. You grant Us, Our Affiliates and Our hosting providers a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-ComWeb Applications and program code created by or for You using a Service or for use by You with the Services, as necessary for Us to provide the Services and Support in accordance with this Agreement and Order Forms. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any Your Data, Non-ComWeb Application or program code.

    6.3    License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our Services.

    7. CONFIDENTIALITY

    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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and the ComWeb Platform (which is proprietary to ComWeb); and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), 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 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, (d) was independently developed by the Receiving Party, or (e) disclosure in accordance with the Documentation.

    7.2    Protection of 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) (a) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that 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 will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.

    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.

    8. REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

    8.1    Representation. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

    8.2    Our Warranties. We warrant that (a) the Services will perform materially in accordance with the applicable Documentation, (b) subject to the “Integration with Non-ComWeb Applications” section above, We will not materially decrease the functionality of the Services during a subscription term, and (c) We will not materially decrease the overall security of the Services during a subscription term. For any breach of an above warranty, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

    8.3    Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY OR ITS LICENSORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT GUARANTEE THAT SERVICES WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR WILL ADDRESS ALL LAWS, RULES OR STANDARDS APPLICABLE TO YOUR ACCOUNTING, FINANCE OR HUMAN RESOURCES. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ACTS OR OMISSION OF COMWEB. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

    9. MUTUAL INDEMNIFICATION

    9.1    Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You in settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-CII Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.

    9.2    Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that the Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us in settlement of, a Claim Against Us; provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.

    9.3    Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

    10. LIMITATION OF LIABILITY

    10.1    Limitation of Liability. EXCEPT WITH REGARD TO ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION (a) WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, (b) WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE, AND (c) WILL BE INCREASED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER IN THE EVENT OF INDEMNITY BY US UNDER SECTION 9.1 (INDEMNIFICATION BY US).

    10.2    Exclusions. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, AND IN NO EVENT WILL EITHER PARTY’S LICENSOR HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES, HOWEVER CAUSED, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

    10.3    Limitation of Restrictions. The above limitations will not limit Your payment obligations under the “Fees and Payment” section above. 

    11. TERM AND TERMINATION

    11.1    Term of Agreement. This Agreement commences on the date You first accept it, as displayed in Your Customer Agreement Form’s Effective Date and continues until all subscriptions hereunder have expired or have been terminated.

    11.2    Term of Purchased Subscriptions. The term of each purchased subscription shall be a minimum of 30 days. Any and all purchased subscriptions thereunder will automatically renew for additional periods of one month, unless either party gives the other a 30 day notice of non-renewal. Price-per-unit will be the same for You and all subsequent orders during the initial term as outlined in Your Customer Agreement Form. We may increase the per-unit pricing during any renewal period and We will provide You notice of pricing changes at least 60 days prior to the applicable pricing adjustment, in which case the pricing increase will be effective upon renewal and thereafter. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume 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.

    11.5    Termination. A party may terminate this Agreement for cause if the other party (a) materially breaches this Agreement and fails to cure the breach within 30 days after written notice by the non-breaching party detailing the breach, or (b) becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within 60 days.

    11.6    Refund or Payment upon Termination. If You terminate this Agreement in accordance with Section 11.5 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.5 (Termination), You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

    11.7    Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, or within 30 days after any suspension due to non-payment, whichever is earlier, We will make the Your Data available for You to export or download. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.

    11.8    Surviving Provisions. Sections 5 (Fees and Payment), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.3 (Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.6 (Refund or Payment upon Termination), 11.7 (Data Portability and Deletion), 11.8 (Surviving Provisions), 13 (Who You are Contracting With, Notices, Governing Law, Jurisdiction and Arbitration) and 14 (General Provisions) will survive any termination or expiration of this Agreement.

    12. FREE TRIAL

    If We make any of Our products and services available to You as part of a free trial, those products and services will be considered “Services” under this Agreement, including this Section 12, even if the products and services are not specified in an Order Form, notwithstanding the “Services” definition in Section 1 (Definitions). Any such free trial will end at the earlier of (a) the end of the free trial period, (b) the start date of any subscriptions purchased by You for such Services, or (c) termination by Us in our sole discretion. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

    Any data you enter into the Services and any customizations made to the Services by or for You during a free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial, or export such data, before the end of the trial period.

    Notwithstanding Sections 2 (Our Responsibilities), 7 (Confidentiality), 8 (Representation, Warranties, Exclusive Remedies and Disclaimers), and 9.1 (Indemnification by Us), in any free trial We provide the Services “AS IS,” without any warranty, covenant, commitment or liability whatsoever, to the extent permitted by law.

    Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.

    13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW, JURISDICTION AND ARBITRATION

    13.1    General. Who You are contracting with ComWeb or Affiliate of ComWeb under this Agreement by signing the Order Form. You should direct notices to under this Agreement and any Order Form as follows: ComWeb Internet Solutions, Inc. 1875 Old Alabama Rd, Suite 1110, Roswell, GA 30076. Notices should include what law will apply in any dispute arising out of or in connection with this Agreement, and where and how such disputes will be resolved, depend on where You are domiciled. Notices to you will be addressed as set forth in the Order Form.

    13.2    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 second business day after mailing, except for (c) notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Notices to Us will be addressed as specified in Section 13.1 (General) above. Billing-related notices to You will be addressed to the relevant billing contact designated by You in the Order Form. All other notices to You will be addressed to the relevant company contact designated by You in the Order Form.

    13.3    Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Georgia, without regard to its conflict of laws provisions. The federal and state courts sitting in Atlanta, Georgia will have sole and exclusive jurisdiction and venue with respect to any disputes arising from or related to this Agreement or the relationship between the Parties.  In the event of a dispute under this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs incurred in such dispute.

    13.4    No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other third party. Subject to any permitted Assignment under Section 14.9 (Assignment), the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.

    14. GENERAL PROVISIONS

    14.1    Export Compliance. The Services, other technology of Ours, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. We and You each represent that it is not named on any U.S. government denied-party list. You will not permit any User to access or use any Service in a U.S.-embargoed country (currently Crimea, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. or other applicable export law or regulation.

    14.2    Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kick back, 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 Us as directed in Section 13.1 (General).

    14.3    Publicity and Reference. Either party may publicly identify the other party as a customer or vendor, as applicable, using the other party’s name and logo. Either party may issue a press release announcing Your selection of the Services, the text of which will be subject to the other party’s prior written approval, not to be unreasonably withheld or delayed.

    14.4   Entire Agreement and Order of Precedence. This Agreement and any executed Order Forms are the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.

    14.5    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 (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that You shall not be released from Your obligations hereunder unless We consent to such release in a signed writing. 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 competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    14.6    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.

    14.7    No Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.

    14.8    Waiver. No failure or delay by either party in exercising any right hereunder will constitute a waiver of that right.

    14.9    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 or applicable Order Form will remain in effect.