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Terms-of-Service

THIS AGREEMENT ("AGREEMENT") GOVERNS BOTH ANY "FREE" "PREVIEW" OR OTHER CONTENT MADE AVAILABLE PRIOR TO PAYMENT, AND, IF YOU PURCHASE OUR SERVICES, YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.

YOU ACCEPT THIS AGREEMENT AND IT BECOMES A BINDING CONTRACT UPON VISITING THE WEBSITE. YOU ALSO RECONFIRM THIS AGREEMENT UPON EACH LOGIN OR USE OF THE SERVICE. YOU MAY ALSO ACCEPT THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM, IN PAPER OR ELECTRONIC FORM, THAT REFERENCES THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT FOR A COMPANY OR OTHER BUSINESS OR OTHER LEGAL ENTITY, THIS AGREEMENT IS BINDING ON YOU AND YOUR COMPANY/BUSINESS AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO YOU, INDIVIDUALLY, AS WELL AS SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT, AND YOU MUST IMMEDIATELY CEASE USE AND YOU MAY NOT USE THE SERVICES IN THE FUTURE.

This Service provides a website for informational purposes only. You may only use the Service for Your own business (or personal) purpose; all other uses are excluded. Without limiting the foregoing, You may not use the Service to provide services to other businesses, you may not resell, redistribute, transfer, convey or allow third parties to use the Service - unless You have entered into a separate Reseller Agreement or other similar type of agreement with us.

As a corollary to the limited use rights above, and for the avoidance of doubt, We do not consent to any use of the Services if You are an employee or contractor or otherwise affiliated with, directly or indirectly, any other LMS system that offers similar study content ("Competitor"), nor do We consent to Your use of the Service if You are doing so in any part to learn the method of operation of the Service to become, directly or indirectly, a Competitor or to provide the method of operation, the feature list, the look and feel, or any other information about our products or Services to competitors or to become our competitor.

We also do not consent to Your use, and You covenant not to access the Services for purposes of, monitoring the availability, performance or functionality of the Service, or for any other benchmarking or similar purposes. You further understand and agree that if You are an employee, contractor or otherwise directly or indirectly affiliated with, a Competitor, and You access our Service, or attempt to obtain any information about us or our Service from any third parties or individuals not authorized to disclose such information to You, You will cause irreparable damage to Us and that We shall be entitled, in addition to any other relief available at law or in equity, to an injunction restraining such access and a mandatory injunction recovering from You all of our confidential information and other knowledge You wrongfully obtained about us.

You further covenant not to (and We do not consent to Your use of the Services to) hack, trick, cheat, perform any other tests or vulnerability assessments, monitor or check the security features of, or otherwise directly or indirectly manipulate Service to anyone’s benefit, without our written consent. When using our Service, You may only access Your Data using Your personal login credentials, You may not attempt to access data or programs that belong to other customers, or acquire login credentials of other Users, or otherwise share your login credentials with third parties.

1. DEFINITIONS

"Affiliate(s)" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject employer. "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.

"Assessment" means any system of seeking to validate a particular topic or subject has been understood, such as a test, quiz, evaluation or other verification of knowledge of the applicable subject.

"Course(s)" means a bundle of material used to learn, review or otherwise view a particular topic, whether in text, video, audio-visual, or any other format.

“Data” means any and all electronic information other than software source code.

"De-Identified Data" means meta data generated by the operation of the Services, aggregated data, and other data that does not identify an individual or business.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Order Form" means the ordering documents for Purchased Services hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference. You agree that Order Forms may be entered into using solely or partially electronic signature and electronic contracting process and such electronic signatures or acceptances shall be valid as signed writings.

"Plan" means a payment plan that discloses the fees and any additional terms associated with Your Purchased Services.

"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from free content.

"Service(s)" means the functionality, data, information, reports, processing capabilities and other features provided on, or that are made available from (such as in an OEM / private branded / or reseller site) or otherwise in respect to the Website including but not limited to online and mobile applications provided thereon or that access such site or data, as well as any other communications services We provide or enable (i.e. electronic mail, text, iMessage, Skype, Twitter, etc).

"Subscription Term" means the period of time specified in an Order Form that You are authorized to use the Service, and for such additional periods as provided in Section 12.2.

"Subscription" means the agreement to subscribe to the applicable Plan You have chosen.

"Subscription Term" or "Term" means the period of time that You have purchased to use the Services under a Subscription.

"User(s)" means You and/or individuals who are authorized by You and permitted hereunder to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied User identifications and passwords by Us (or by You if We have provided You with an enterprise system to manage user subscriptions). Users may include but are not limited to Your employees, consultants, contractors, partners, and agents; or third parties with which You transact business. Users however may not be, or be affiliated in any way with, a Competitor.

"We," "Us" or "Our" means Livanta LLC, a Maryland limited liability company.

"You" or "Your" or similar pronouns means you, individually, and the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"Your Data" means all electronic data or information submitted by You in respect of using the Services, but does not include De-Identified Data.

2. FREE CONTENT

We may make one or more Services available to You on a trial, free or other basis without charge. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. You may use a free trial subscription only for the purpose of evaluating our Service.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED AS-IS WITHOUT ANY WARRANTY OF ANY KIND.

3. PURCHASED SERVICES

3.1. Provision of Purchased Services. If You have Subscribed to a paid Service with Us, We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Subscription Term as defined in an Order Form. Alternatively, You may have engaged us through a company that has integrated Our Services into their platform or service; in this event, We shall make the Purchased Services available to You pursuant to this Agreement and your agreement with the company that has integrated Our Service into their platform. You agree that Your purchase of services hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Us regarding future functionality or features.

3.2. Service Licensing. You are authorized to use Our Services based on the Plan You purchased which sets forth the right to access and the right to view Courses and Assessments, if applicable.

3.3 Service Pricing. When You sign up for Our Services, You are required to select a Plan from the list of Plans presented and authorized by Us. This Plan will detail Our fees and may contain various provisions, surcharges, and overage use charges as well as any usage limitations. We may modify Our Service pricing or ask You to select a different Plan at any time, unless the plan You select has a time commitment associated with it (in which case the pricing shall not be changed during the Term mentioned in the Subscription, unless the Order Form expressly states otherwise).

3.4 Reasonable Use of Services. Some of Our plans may not have limitations on certain usage features. We reserve the right to change the pricing plan for customers that exceed a reasonable resource utilization of our Service. If Your account is affected by such Plan change, We will notify You via electronic mail and give You a reasonable opportunity (which shall be stated in the notice and which may be between 5 and 30 calendar days, depending on the nature of Your use) to avoid the change.

3.5 Downloaded Content. Our Service may permit you to download and store Courses, Assessments or portions thereof in permanent storage ("Downloaded Content"). With respect to Downloaded Content: (a) You may use Downloaded Content solely for Your personal or internal business purposes; (b) You may not further reproduce, distribute, publicly display or otherwise make available the Downloaded Content; (c) You covenant to maintain your computer system in a reasonably secure manner to protect the Downloaded Content from unauthorized access, and to notify Us promptly upon learning of any unauthorized access to the Downloaded Content; and (d) You shall permanently delete all Downloaded Content upon the end of the applicable Subscription Term, unless an Order Form expressly provides you with a permanent archival right (and if it does, You shall comply with any conditions on that permanent archival right).

4. USE OF THE SERVICES

4.1 Our Responsibilities. We shall during a Subscription Term: (i) provide to You basic email support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately (which obligations shall be detailed in a separate Order Form), (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall schedule to the extent practicable during evening or weekend hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services in accordance in all material respects with applicable laws and government regulations effective in the United States. Please see section 11 for limitations on Your remedies if We breach this section.

4.2. Your Responsibilities. You shall: (i) be responsible for Users and any third party who accesses the Services through You complying with this Agreement, (ii) be solely responsible for the accuracy, quality, use, development, integrity and legality of Your Data, and of the means by which You acquire and use Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us in writing and via phone call promptly of any such unauthorized access or use of the Service or the access credentials We provided You, and (iv) use the Services only in accordance with this Agreement, applicable Order Forms and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users (unless You have entered into a Reseller Agreement with Us), (b) sell, resell, sublicense, offer as a service bureau, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or personal rights or other obligations owed to third parties, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to or actually gain unauthorized access to the Services or their related systems or networks.

4.3. Usage Limitations. You may also not use the Service in a way that overloads the system and makes it unavailable, slow, or unusable to other users of the Service. Services may be subject to other limitations. Any such limitations are specified in Your Plan, or any other documentation. The Services may provide real-time information to enable You to monitor Your compliance with such limitations.

4.5. Security. We will make commercially reasonable efforts to ensure the confidentiality, integrity, and availability of Your Data. While We are committed to using such efforts to ensure that Your Data is safe and secure, We reserve the right to decide what efforts are commercially reasonable. We will not be responsible for any loss of data, income, clients, money or any other of Your or Your client’s resources due to any security breaches or Your or Your Users’ misuse of Our Services or criminal acts of third parties.

5. NO LIABILITY FOR THIRD-PARTY SERVICES OR PROVIDERS

5.1. Third-Party Products and Services. Our Service may include, and from time to time We may offer, third party applications, data, and services integrated with Our Service. In addition, Our Service may be integrated into a third party service or platform. We are only responsible for Our Services, and You agree that We shall not be liable, or otherwise responsible, for the accuracy, performance, reliability, availability or any other feature, failure or damage caused by any third party service, plugin, software, platform or other functionality that is not directly supplied by Us. Each such third party service, platform, software or plugin may contain additional terms. You agree that if you are damaged or have any issue with such third party service, platform, software or plugin, You will contact the vendor/supplier of that third party service, platform, software or plugin directly, and seek all remedies directly with them.

6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1. User Fees. You shall pay all fees specified in all Order Forms and/or Plans hereunder. Except as otherwise specified herein or in an Order Form or Plan, (i) fees are quoted and payable in United States dollars (ii) depending on the Plan You select, fees may be based on either Services purchased or on quantity of actual usage of the Service, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.

6.2. Invoicing and Payment. Unless set forth specifically in an Order Form, You agree to timely pay fees in U.S. dollars via check or money order (drawn on a US Bank, in readily available funds), or via credit card. If You pay by credit card, You authorize Us to charge such credit card for all Services listed in the Order Form or Your Plan for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2. All other forms of payment shall be deemed paid when We actually receive the check and it clears our bank. Regular charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order Form or Plan. Any usage charges shall be made monthly, after the end of the billing period. If You have designated credit card as the payment method and We are unable to charge Your credit card, We will notify You by e-mail and give You a reasonable time (preferably in 5 business days) to update Your billing information and satisfy the payment. You are responsible for maintaining complete and accurate billing and contact information in the Services.

6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

6.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Services is 30 or more calendar days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.

6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute; provided that if such dispute is not resolved within 60 calendar days, We reserve the right to enforce Section 6.3, 6.4 and the other provisions of this Agreement.

6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to collect Taxes for which You are responsible under this paragraph, the appropriate amount shall may be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. You hereby indemnify, defend and agree to hold Us (and our officers, directors, members, employees and other agents and affiliates) harmless from any and all actions, damages, losses and other amounts claimed by an tax authority for non-payment of such Taxes, and unless expressly prohibited by law, such indemnity shall include payment of all fines, interest and penalties associated with the non-payment/late payment/insufficient payment of such Taxes, unless You pay such Taxes to us and We fail to remit such Taxes to the appropriate tax authority.

7. PROPRIETARY RIGHTS

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related patent, copyright, trademark, trade secret and other proprietary rights therein (intellectual property rights), and all enhancements, modifications and other alterations or derivatives thereof, regardless of whether such enhancements, modifications and other alterations or derivatives thereof arise from any suggestion, input, idea, or other submission by You. For the avoidance of doubt, You hereby assign over to Us (and automatically assign over to us in the future) all right, title and interest to all intellectual property rights described or disclosed in any suggestion, input, idea, or other submission by You relating to the Service; provided however that at no time shall We own any rights in Your Data. No rights are granted to You hereunder other than as expressly set forth herein.

7.2. Restrictions. You shall not (and covenant not to) (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service using any of our materials, intellectual property rights or confidential information, or (b) copy any features, functions or graphics of the Services. For the avoidance of doubt, to the extent You and We have entered into any previous non disclosure, confidentiality or other agreement, any terms thereof that purport to allow you to retain or use the knowledge gained by using our Services shall be null and void and shall not apply between us.

7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data; provided however that We have a license and right during the Subscription Term to use Your Data solely to provide the Services to You and as otherwise permitted herein, or as required to comply with applicable law.

7.4 Ownership and Use of De-Identified Data. We own all De-Identified Data, and We have the right to sell, license, sublicense, transfer and otherwise use such De-Identified Data in any manner, without payment to You, or reduction or other offset to any fees We charge.

8. CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party"), whether directly, or indirectly through others, 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/or the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. De-Identified Data is Our Confidential Information.

8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

8.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not, except to provide the Services or prevent or address Service or technical problems, or at Your request in connection with customer support matters: (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data. From time to time We may perform general analysis of audit trails and any associated information in order to (i) determine Service use statistics and (ii) validate and enforce data security. Such analysis will not disclose Your confidential information. We will not disclose results of such analysis to anyone outside of Our organization unless permitted by You, required by law, or required by an external business partner (such as a bank) in order for Us to comply with our legal obligations to such partner, provided that in such cases such business partner shall be obligated to execute a non disclosure agreement that contains terms not materially less protective of the Disclosing Party than are provided herein.

8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9. WARRANTIES AND DISCLAIMERS

9.1. Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement. You represent that You will not transmit to Us Malicious Code. We warrant that We will scan our Services and software with a commercially available up to date antivirus scanner, and will not knowingly provide or otherwise make available such information or Services unless such scan discloses no known Malicious Code that is detectable by such antivirus service.

9.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS OR WARRANTIES HEREIN THE SERVICE IS PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTY OF ANY KIND AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY UNIFORM COMMERCIAL INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT ANY SERVICE INFORMATION, POSTINGS, CONTENT, EFFORTS, SERVICES, THE SERVICE OR ANY SYSTEM PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.

10. INDEMNIFICATION

10.1. Indemnification. In addition to any other indemnity provided herein, You hereby covenant to indemnify, defend and hold Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) harmless from and against any Claim made or brought against Us by a third party: (i) alleging that Your Data, or Your (or Your Users’) use of the Services, are in violation of this Agreement, infringe or misappropriate the intellectual property or other rights of a third party or violates applicable law; (ii) arising from Your (or Your agents, Affiliates or other persons who act on Your behalf) negligent or intentional action or omission, breach of this Agreement, or failure to comply with applicable law. Without limiting the foregoing, You shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

10.2 Infringement claims. In the event a third party makes a claim that the Service infringes its intellectual property or other rights, You shall give Us prompt written notice of such claim. We shall have the right to among other actions, seek a license, resolve, provide a design-around, or otherwise make modifications to avoid such infringement or other rights claim. In Our discretion if We determine that the above actions are commercially infeasible, in addition to any other rights herein, may terminate this Agreement or the applicable portion of the Services that is alleged to cause the infringement or otherwise violate third party rights, and refund to You any pre-paid amounts or portions thereof relating to such terminated portion of the Service. This refund is Your exclusive remedy in the event of a third party claim that the Service infringes their intellectual property or other rights.

11. LIMITATION OF LIABILITY AND REMEDY

11.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $10,000 OR THE AMOUNT ACTUALLY PAID BY YOU HEREUNDER IN THE ONE MONTH PRECEDING THE DATE THE INCIDENT GIVING RISE TO THE CLAIM ACCRUED. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU, YOUR AFFILIATES, OR ANY OTHER PERSON WHO USED OUR SERVICE WITH YOUR ACCESS RIGHTS FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER ARISING HEREUNDER OR UNDER OTHER APPLICABLE LAW, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Repair Or Replace Remedy. You agree that your sole remedy in the event you have any claim against Us in respect of the provision of the Service is for us to repair, replace or otherwise correct such Service to meet the warranty provided for herein; under no circumstances will We be liable to You in such cases for any damages, costs or fees of any kind, including but not limited to actual, compensatory, direct, incidental, punitive or consequential damages, whether or not occasioned by Our negligence. If this provision is determined to have failed of its essential purpose or is otherwise deemed or determined to be unenforceable, You agree that this provision is an independent limitation from all other limitations of remedies herein, and all such other limitations on remedy, including but not limited to those in Sections 11.1 and 11.2 shall survive and remain applicable to any claim you make, including but not limited to any claim that We failed to provide an effective repair, replacement or re-performance of services.

12. TERM AND TERMINATION

12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the all Subscription Terms granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

12.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form or Plan and continue for the Subscription Term specified therein or in the Plan, whichever is longer. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is longer), unless either party gives the other notice of non-renewal at least one day before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice (which You acknowledge and agree may be by electronic communication) of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% over the pricing for the relevant Services in the immediately prior Subscription Term, unless the pricing in such prior term was designated as promotional or one-time, or unless the inflation rate (determined from the Consumer Price Index (All Urban Wage Earners) for the last three months prior to the end of the term is higher than 10%, in which case the price increase will equal to the greater of the inflation rate over such period, or the rate We normally charge new customers requesting similar subscriptions.

12.3. Termination for Material Breach. A party may terminate this Agreement for Material Breach: (i) upon 30 calendar days written notice to the other party which notice explains in detail the basis for the claim of a material breach, if such material breach described in such notice remains uncured at the expiration of such period, or (ii) immediately without notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If We determine that Your use or actions are causing or likely to cause material and imminent damage to our ability to provide the Service, We may terminate this Agreement and/or or suspend Your access to the Service immediately without notice. We shall endeavor in subjective good faith to give You notice if We take this emergency action.

12.4. Refund or Payment upon Termination. Upon any termination arising from a proven material breach by Us, We shall refund You any prepaid fees covering the remainder of the Subscription Term of all subscriptions after the effective date of termination. Upon any termination arising from Your material breach, You shall pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination all of which are accelerated and due and payable upon such termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.5. Return of Your Data. Upon Your account termination, We will archive Your Data for a reasonable period which may be as short as 30 calendar days. We shall have no obligation to maintain or provide any of Your Data and shall thereafter, and unless We are legally prohibited from doing so, delete all of Your Data in the Service or otherwise in Our possession or under Our control.

12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

13. GOVERNING LAW AND JURISDICTION; ARBITRATION

13.1 Jurisdiction. This contract is governed by the laws of the State of Maryland, exclusive of its conflicts of laws provisions. The parties agree that the Uniform Commercial Code, the United Nations Convention on Contracts for the International Sale of Goods and any Uniform Computer Information Transactions Act shall not apply between us.

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination unless the party receiving such email responds that the email is sufficient notice). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.

13.3. Agreement to Governing Law and Jurisdiction; Arbitration. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and consents to the exclusive jurisdiction of the applicable courts above; provided that any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, other than a claim that is solely equitable in nature (which equitable claim may, at the election of the party bringing it, either be arbitrated as provided below, or brought directly in a court or tribunal of competent jurisdiction), shall be finally settled by arbitration before a single arbitrator administered by the American Arbitration Association (AAA). Any claim seeking an equitable remedy may be filed in any court having competent jurisdiction thereof, with or without notice to the other Party prior to filing. The Commercial Arbitration Rules of the AAA (the “Rules”) shall apply, unless the AAA, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that expedited, provisional, preliminary or special rules of the AAA shall apply. The parties shall agree on the arbitrator, provided that if they cannot agree, the arbitrator shall be appointed in accordance with the Rules. The arbitration shall take place as much as possible via electronic means, by use of videoconferencing, email and other remote technology; if a physical hearing must occur, it shall occur in the home state and city of the party who has made the claim. An arbitrator shall be entitled to allow the parties to conduct reasonable discovery under the circumstances and in light of the amount in controversy and importance of the subject matter. A party that does not cooperate in discovery shall be subject to sanctions in the discretion of the arbitrator, up to and including a default judgment, award of fees or other appropriate remedies. A party may elect to arbitrate claims for provisional remedies via arbitration, or sue directly in court as provided above. If a party elects to arbitrate for provisional remedies, the other party may not make an election to move such claim into any court (only the party asserting breach has the right to elect whether a claim for injunction or for provisional remedies shall be arbitrated or tried directly in court).

13.4. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

14. GENERAL PROVISIONS

14.1. Export Compliance. The Service is not for export, and may not be used or exported outside of the United States. If We agree in writing with you in a separate Agreement, You may use the Service from a remote non U.S. jurisdiction, provided that You covenant to comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting You (i) shall ensure that all such remote non U.S. Users are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

14.2. 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.

14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, intended or implied.

14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.6. Attorney Fees. You shall pay on demand all of costs incurred by Us to collect any fees or charges due to Us under this Agreement, or in connection with any claim arising hereunder or under applicable law whether or not arising hereunder, or to otherwise enforce this Agreement, where "costs" shall include Our reasonable attorneys' and other professionals' fees. You further agree that this covenant shall survive any judgment and this duty and obligation to pay "costs" shall continue until full collection of the judgment, including but not limited to all appeals of any decision.

14.7. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld). Notwithstanding the foregoing, You may assign this Agreement in its entirety (including all Order Forms), without Our consent, to Your Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets not involving Our direct competitor. We may assign this Agreement at any time, to any person, other than to Your direct competitor. Any assignment by a party in violation of this provision is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.8. Agreement Changes. We may add to, change or remove any part of this Agreement at any time, by giving notice on the Service (such notice may be provided at the time you login, or via a textual notice appearing on the Service that terms have changed, or via email or other reasonable means. Your continued use of the Service after we make any changes to this Agreement constitutes Your acceptance and agreement to such changes.

14.9. Entire Agreement. This Agreement, including all exhibits, documents incorporated by reference, and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No employee, agent or other person associated with Us has the right or power to amend, waive or otherwise orally modify this Agreement.

14.10. No adverse construction. You and We have had the opportunity to consult with, review and negotiate the terms and provisions of this Agreement and use of the Service, and neither party shall therefore be subject to any adverse construction rule as the draftsperson of the Agreement.

14.11. Electronic Communications. You agree to transact business with Us using electronic communications, either via web forms on the Service, or via email. Electronic communications will be deemed received by You when Your electronic communication system reports that any electronic communication We send You has been received by Your system, regardless of whether You ever actually open or read such electronic communication. We may, but are not required, to use return receipt requests. Unless specifically required by applicable law or as otherwise provided herein, You consent to receive all notices, information, and other communications from Us concerning any subject matter, via electronic communication. It is Your responsibility to maintain valid electronic communication addresses, and We may terminate Your access to the Service without liability to you if, after We give You reasonable prior notice, You fail to update and maintain Your electronic communication addresses.

14.12 We may add, change, discontinue, remove or suspend any and/or all Services, including features and specifications of products described or depicted on the Service, temporarily or permanently, at any time, without notice and without liability.