| "Affiliate" | Any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. |
| "Agreement" | This Master Subscription Agreement. |
| "Beta Services" | ExhibitPower services or functionality made available at no additional charge and clearly designated as beta, pilot, limited release, developer preview, non-production, or evaluation. |
| "Content" | Information obtained by ExhibitPower from publicly available sources or third-party content providers and made available to you through the Services or pursuant to an Order Form. |
| "Documentation" | Our usage guides, policies and user documentation, as updated from time to time. |
| "Free Services" | Services that ExhibitPower makes available to you free of charge. |
| "Malicious Code" | Code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses. |
| "Non-ExhibitPower Application" | A web-based, mobile, offline or other software process or functionality provided by you or a third party that interoperates with a Service. |
| "Order Form" | An ordering document or online order specifying the Services to be provided, entered into between you and us or any of our Affiliates, including any addenda and supplements thereto. |
| "Purchased Services" | Services that you or your Affiliate purchase under an Order Form. |
| "Services" | The services ordered by you under an Order Form and made available online by us, including associated ExhibitPower mobile components. Excludes Content and Non-ExhibitPower Applications. |
| "User" | An individual authorized by you to use a Service, for whom you have purchased a subscription, and to whom you (or we at your request) have supplied login credentials. Users may include your employees, consultants, contractors, agents, and third parties with which you transact business. |
| "We," "Us," "Our" | ExhibitPower LLC, a Texas limited liability company, and its Affiliates. |
| "You," "Your" | The individual or company accepting this Agreement on their own behalf or on behalf of a company or legal entity, and Affiliates of that entity which have entered into Order Forms. |
| "Your Data" | Electronic data and information submitted by or for you to the Services, excluding Content and Non-ExhibitPower Applications. |
We will (a) make the Services and Content available to you pursuant to this Agreement and applicable Order Forms; (b) provide ExhibitPower standard support for Purchased Services at no additional charge, and/or upgraded support if purchased; and (c) use commercially reasonable efforts to make online Purchased Services available 24/7, except for:
We will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data, as more fully described in our Information Security Policy (as amended from time to time). Those safeguards will include measures for preventing access, use, modification, or disclosure of Your Data by our personnel except: (a) to provide the Purchased Services and prevent or address service or technical problems; (b) as compelled by law; or (c) as you expressly permit in writing.
We will be responsible for the performance of our personnel (including employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.
From time to time, we may make Beta Services available to you at no charge. Beta Services are intended for evaluation purposes only, are not supported, and may be subject to additional terms. Beta Services are not considered "Services" under this Agreement; however, all restrictions, our reservation of rights, and your obligations concerning the Services apply equally to Beta Services.
Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in our sole discretion and will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Unless otherwise provided in the applicable Order Form: (a) Purchased Services and access to Content are purchased as subscriptions; (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription, prorated for the remaining term; and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Services and Content are subject to usage limits as specified 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 only be reassigned to a new individual replacing one who will no longer use the Service.
If you exceed a contractual usage limit, we may work with you to reduce your usage. If you are unable or unwilling to abide by a contractual usage limit, you will execute an Order Form for additional quantities promptly upon our request and/or pay any invoice for excess usage.
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 it; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify us promptly of any such unauthorized access or use; (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms, and applicable laws; and (e) comply with the terms of service of any Non-ExhibitPower Applications you use with our Services.
You will not: (a) make any Service or Content available to anyone other than authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Service or Content, or include it in a service bureau offering; (c) use a Service to store or transmit infringing, libelous, unlawful, or tortious material, or material that violates third-party privacy rights; (d) use a Service to store or transmit Malicious Code or to disrupt the integrity or performance of any Service; (e) attempt to gain unauthorized access to any Service or Content or its related systems; (f) circumvent any contractual usage limit; (g) modify, copy, or create derivative works based on a Service or any part thereof; (h) frame or mirror any part of any Service or Content except on your own intranets for internal business purposes; or (i) disassemble, reverse engineer, or decompile a Service or Content, or access it to build a competitive product or service.
Any use of the Services that in our judgment threatens the security, integrity, or availability of our services may result in immediate suspension. We will use commercially reasonable efforts to provide notice and an opportunity to remedy such violation prior to suspension.
If we are required by a licensor to remove Content, or receive information that Content may violate applicable law or third-party rights, we will notify you and you will promptly remove such Content from your systems. Similarly, if a Non-ExhibitPower Application hosted on a Service by you may violate applicable law or third-party rights, you will promptly disable or modify it to resolve the potential violation. If you do not take required action, we may disable the applicable Content, Service, and/or Non-ExhibitPower Application until the potential violation is resolved.
You will pay all fees specified in Order Forms. Except as otherwise specified: (i) fees are based on subscriptions purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term.
You will provide us with valid and updated credit card information, or a valid purchase order or alternative document reasonably acceptable to us. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
If any invoiced amount is not received by the due date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. We may also condition future subscription renewals on payment terms shorter than those specified in Section 11.
If any amount owing is 30 or more days overdue (or 10 or more days overdue for credit card charges), we may accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend our services until such amounts are paid in full. We will give you at least 10 days' prior notice before suspending services, except for customers paying by credit card or direct debit whose payment has been declined.
We will not exercise our rights under the Overdue Charges or Suspension of Service sections if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature (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, we will invoice you for that amount unless you provide a valid tax exemption certificate. We are solely responsible for taxes assessable against us based on our income, property, and employees.
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.
Subject to the limited rights expressly granted hereunder, we and our Affiliates, licensors, and Content Providers reserve all right, title, and interest in and to the Services and Content, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
You grant us, our Affiliates, and applicable contractors a worldwide, limited-term license to host, copy, display, and use any Non-ExhibitPower Applications, program code created by or for you using a Service, and Your Data, each as reasonably necessary for us to provide and ensure proper operation of our Services. We acquire no right, title, or interest from you in or to any of Your Data, Non-ExhibitPower Application, or such program code beyond what is necessary to perform the Services.
You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or Users relating to the operation of our services.
Services, including related software and technology, delivered to a federal government end user are provided solely in accordance with this Agreement. Government technical data and software rights include only those rights customarily provided to the public as specified herein, in accordance with FAR 12.211, FAR 12.212, DFAR 252.227-7015, and DFAR 227.7202-3, as applicable. If a government agency requires rights not granted under these terms, it must negotiate with us for a mutually acceptable written addendum.
"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 circumstances of disclosure.
Confidential Information does not include information that: (i) is or becomes generally known to the public without breach of any obligation to the Disclosing Party; (ii) was known to the Receiving Party prior to disclosure; (iii) is received from a third party without breach of any obligation; or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care it uses to protect its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) limit access to Confidential Information to those employees and contractors who need it for purposes consistent with this Agreement and who have signed confidentiality agreements providing protections not materially less protective 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.
The Receiving Party may disclose Confidential Information to the extent compelled by law, 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.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
We warrant that during an applicable subscription term: (a) this Agreement, the Order Forms, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data; (b) we will not materially decrease the overall security of the Services; (c) the Services will perform materially in accordance with the applicable Documentation; and (d) we will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those described in the Termination and Refund or Payment upon Termination sections below.
We will defend you against any third-party claim alleging that any Purchased Service 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 such a claim, provided you: (a) promptly give us written notice of the Claim Against You; (b) give us sole control of the defense and settlement; and (c) give us all reasonable assistance at our expense.
If we receive information about an infringement claim related to a Service, we may at our discretion and at no cost to you: (i) modify the Services so they are no longer claimed to infringe; (ii) obtain a license for your continued use; or (iii) terminate your subscriptions for that Service upon 30 days' written notice and refund any prepaid fees covering the remainder of the term.
You will defend us and our Affiliates against any third-party claim alleging that: (a) any of Your Data or your use of Your Data with our Services; (b) a Non-ExhibitPower Application provided by you; or (c) the combination of a Non-ExhibitPower Application provided by you with our Services, infringes or misappropriates such third party's intellectual property rights, or arises from your use of the Services in an unlawful manner or in violation of this Agreement (each a "Claim Against Us"). You will indemnify us from any damages, attorney fees, and costs finally awarded against us as a result of, or for amounts paid by us under a settlement approved by you, of a Claim Against Us.
This Mutual Indemnification section 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 herein.
This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach, if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
If this Agreement is terminated by you for cause, we will refund 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 for cause, you will pay any unpaid fees covering the remainder of the term of all Order Forms. Termination does not relieve you of your obligation to pay fees for the period prior to the effective date of termination.
Upon request made within 30 days after the effective date of termination or expiration of this Agreement, we will make Your Data available to you for export or download. After such 30-day period, we will have no obligation to maintain or provide Your Data and will thereafter delete or destroy all copies in our systems or otherwise in our possession or control, unless legally prohibited.
The following sections will survive any termination or expiration of this Agreement: Free Services, Fees and Payment, Proprietary Rights and Licenses, Confidentiality, Disclaimers, Mutual Indemnification, Limitation of Liability, Refund or Payment upon Termination, Your Data Portability and Deletion, Removal of Content and Non-ExhibitPower Applications, Surviving Provisions, and General Provisions.
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; or (c) the day of sending by email, except for Legal Notices (notices of termination or an indemnifiable claim), which shall clearly be identifiable as Legal Notices and are not effective by email alone.
This Agreement shall be governed by the laws of the State of Texas, without regard to choice or conflicts of law rules. Each party consents to the exclusive jurisdiction of the courts of the State of Texas for any dispute arising out of or related to this Agreement.
The Services, Content, other technology we make available, and derivatives thereof may be subject to U.S. and other jurisdictions' export laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation.
You agree that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation, you will promptly notify us at support@exhibitpower.com.
This Agreement is 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. 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.
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.
Neither party may assign any of its rights or obligations hereunder without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety 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.
If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then such other party may terminate this Agreement upon written notice, with a refund of any prepaid fees for the period after termination.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in full force and effect.