The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice: “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions. “Simple Site Designs”, “The Company”, “Ourselves”, “We” and “Us”, refers to our Company. “Party” refers to either the Client or Us, “Parties” refers to both the Client and Us.

Privacy Statement

We are committed to protecting your privacy. Only authorised employees within The Company on a need to know basis use any information collected from individual customers. We constantly review our systems and data to ensure the best possible service to our customers. View our full Privacy Policy.

Confidentiality

We will not sell, share, or rent Your personal information to any third party or use Your e-mail address for unsolicited mail. Any emails sent by The Company will only be in connection with the provision of agreed services and products.

Intellectual Property

We own all the intellectual property rights relating to the site, including the designs, text, database, graphics and layouts, and you agree not to use or copy any part thereof without our express permission. All postings, messages, text, files, images, photos, video, sounds, or other materials (“content”) You upload are added to the site by You at Your own risk. In doing so You are giving express and irrevocable permission for us to store, display and use the content.

Disclaimer

Exclusions and Limitations

The information on this web site is provided on an “as is” basis. To the fullest extent permitted by law, The Company:

Excludes all representations and warranties relating to this website and its contents or which are or may be provided by any affiliates or any other third party, including in relation to any inaccuracies or omissions in this website and/or The Company’s literature; and excludes all liability for damages arising out of or in connection with your use of this website. This includes, without limitation, direct loss, loss of business or profits (whether or not the loss of such profits was foreseeable, arose in the normal course of things or you have advised The Company of the possibility of such potential loss), damage caused to your computer, computer software, systems and programs and the data thereon or any other direct or indirect, consequential and incidental damages.

The Company does not however exclude liability for death or personal injury caused by its negligence. The above exclusions and limitations apply only to the extent permitted by law. None of Your statutory rights as a consumer are affected.

Payment

Please refer to our Software — Terms & Conditions document for full details.

Availability

Unless otherwise stated, the services featured on this website are available sround the world except for Africa. Redistribution or republication of any part of this site or its content is prohibited, including such by framing or other similar or any other means, without the express written consent of The Company. The Company does not warrant that the service from this site will be uninterrupted, timely or error free, although it is provided to the best ability. By using this service you thereby indemnify The Company, its employees, agents and affiliates against any loss or damage, in whatever manner, howsoever caused.

Log Files

We use IP addresses to analyse trends, administer the site, track user’s movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information. Additionally, for systems administration, detecting usage patterns and troubleshooting purposes, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. This information is not shared with third parties and is used only within The Company on a need-to-know basis. Except as required by law, any individually identifiable information related to this data will never be used in any way different to that stated above without Your explicit permission.

Cookies

Like most interactive web sites The Company’s website [or ISP] uses cookies to enable Us to retrieve user details for each visit. Cookies are used in some areas of our site to enable the functionality of this area and ease of use for those people visiting.

Links to this website

If You create a link to a page of this website, You do so at Your own risk and the exclusions and limitations set out in this document will apply to Your use of this website by linking to it.

Links from this website

We do not monitor or review the content of other parties’ websites which are linked to from this website. Opinions expressed or material appearing on such websites are not necessarily shared or endorsed by Us and We should not be regarded as the publisher of such opinions or material. Please be aware that We are not responsible for the privacy practices, or content, of these sites. We encourage our users to be aware when they leave our site & to read the privacy statements of these sites. You should evaluate the security and trustworthiness of any other site connected to this site or accessed through this site yourself, before disclosing any personal information to them. The Company will not accept any responsibility for any loss or damage in whatever manner, howsoever caused, resulting from Your disclosure to third parties of personal information.

Force Majeure

Neither Party shall be liable to the other for any delay or failure to perform any obligation under these terms and conditions which is due to an event beyond the control of such Party including but not limited to any Act of God (or other imaginary entity), terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of the control of such Party, which causes the termination of an agreement or contract entered into, or which could not have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same and shall use all reasonable endeavours to comply with these terms and conditions where it remains possible to do so.

Waiver

Failure of either Party to insist upon strict performance of any provision of these terms and conditions or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations hereunder. No waiver of any of the provisions of these terms and conditions shall be effective unless it is expressly stated to be such and signed by both Parties.

General

The laws of the USA govern these terms and conditions. By accessing this website You consent to these terms and conditions and to the exclusive jurisdiction of the US courts in all disputes arising out of such access. If any of these terms are deemed invalid or unenforceable for any reason (including, but not limited to the exclusions and limitations set out above), then the invalid or unenforceable provision will be severed from these terms and the remaining terms will continue to apply. Failure of The Company to enforce any of the provisions set out in these Terms and Conditions, or failure to exercise any option to terminate, shall not be construed as waiver of such provisions and shall not affect the validity of these Terms and Conditions or any part thereof, or the right thereafter to enforce each and every provision. These Terms and Conditions shall not be amended, modified, varied or supplemented except in writing and signed by duly authorised representatives of The Company.

Notification of Changes

The Company reserves the right to change these conditions from time to time as it sees fit and Your continued use of the site will signify Your acceptance of any adjustment to these terms. If there are any changes to our privacy policy, We will announce that these changes have been made on our home page and on other key pages on our site. If there are any changes in how We use our site customers’ Personally Identifiable Information, notification by e-mail or postal mail will be made to those affected by this change. Any changes to our privacy policy will be posted on our web site 30 days prior to these changes taking place. You are therefore advised to re-read this statement on a regular basis.

These terms and conditions form part of the Agreement between the Client and Ourselves. Your accessing of this website and/or undertaking of a Service Agreement indicates Your understanding, agreement to and acceptance, of the Disclaimer Notice and the full Terms and Conditions contained herein. Your statutory Consumer Rights are unaffected.

This Subscription Agreement (the “Agreement”) is entered into as of the date the Order Form (defined below) is received via suitecx.com (the “Effective Date”) by and between Suitecx, Inc., a California corporation with an office at 7094 Broadway Terrace, Oakland, CA 94611 (“Suitecx” or the “Company”), and ________________(Name) located at _________________(Address) subscriber (the “Licensee” or “You”), as identified in the Order Form generated by Your acceptance of this Agreement and incorporated herein (“Order Form”).
This Agreement governs your use of Suitecx’s proprietary products, including one or more of the following software modules–“diagnosticcx,” “visualizecx,” “precisioncx,” and “automatecx” (each and collectively “Software”), and data Services which consist either of data hosted by Licensee on its servers, or, should You order Dedicated Service (as defined below), data hosted on dedicated servers behind Your security firewall that are controlled and accessible by Company (each a “Service” and together, the Services).

Each of the Software modules above is identified on the applicable Order Form(s) (and, together with the Software that provides access to a Service, comprises the “Suitecx Products”). A Service shall either be “Non-Dedicated” such that Your data will reside on a shared server with your data in a separate partition with password-protected access allowed via an Internet browser only for named Authorized Users (as defined hereinafter); or “Dedicated” Service, where Your data will reside on a dedicated server (owned and maintained either by Suitecx or by Licensee) with appropriate security and controls, that sits behind Your firewall and security software, with access by named users only (and administered either by You or by Suitecx or jointly).

BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY USING A SERVICE, AND BY EXECUTING THE SUITECX ORDER FORM THAT REFERENCES THIS AGREEMENT, 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 SUCH ENTITY TO THESE TERMS AND CONDITIONS, AND IN SUCH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. 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 MAY NOT USE THE SERVICES OR THE SUITECX PRODUCTS.

This Agreement was last updated on Sunday, Jan 10 2016 . It is effective between You and Suitecx as of the Effective Date. The Company may modify this Agreement from time-to-time; provided, however, that it will provide You prompt notice of any such modifications.

In consideration of the mutual promises and covenants hereinafter contained, the parties hereby agree as follows:

1. LICENSE
1. Grant of License. Subject to the terms of this Agreement, Suitecx grants to Licensee a non-exclusive, non-transferable, limited license to permit Authorized Users (as defined below) to access a Service and to use internally the Suitecx Software to gain such access and to use licensed Suitecx Products as expressly set forth in this Agreement. “Authorized User” means an employee of Licensee or a contractor acting under Licensee’s direction, in the ordinary course of Licensee’s business and subject to the restrictions set forth in this Agreement (including in the applicable Order Form), in each case who is authorized by Suitecx (as permitted in the applicable Order Form) to access the specific Suitecx Product or Products ordered on the Order Form. Licensee is responsible for ensuring compliance by its Authorized Users with the terms and conditions of this Agreement and the applicable Order Form.
2. Use of Suitecx Products. All access to and use of any Suitecx Product subscribed to hereunder shall be subject to the restrictions stated in this Agreement and in each applicable Order Form. Any capitalized terms used and not defined herein shall have the meaning set forth in the applicable Order Form. Only those Authorized Users who are expressly named in the applicable Order Form shall have access to or use of the Suitecx Products described in that same Order Form. Except as provided in the applicable Order Form, Licensee shall use the Suitecx Products only for Licensee’s own internal business, and Licensee shall not provide access to the Suitecx Products or any portion thereof to any person (either within or outside Licensee’s company), firm or entity, other than as authorized in this Agreement and the applicable Order Form, including without limitation any subsidiary, parent or other entity that is affiliated with Licensee and not specifically identified in the applicable Order Form.
3. Restrictions on Use. Licensee shall use and represent the Suitecx Products correctly and accurately, without any mistakes or distortions. Licensee shall not modify, reverse engineer, disassemble or decompile Suitecx Products. Licensee shall not create any derivative work from the Suitecx Products and Licensee shall not publish, reproduce, and/or otherwise distribute, externally or internally, the Suitecx Products or any component or portion thereof in any manner (including, but not limited to, via or as part of any Website) without an additional license, it being understood that any such license is subject to the payment of additional fees to Suitecx. Licensee shall take all precautions that are reasonably necessary to: (i) prevent access to or use of the Suitecx Products or any component thereof by any individual or entity that is not an Authorized User; (ii) prevent any unauthorized distribution or redistribution of the Suitecx Products, either internally or externally; and (iii) protect the proprietary rights of Suitecx, its affiliates and their third-party licensors in the Suitecx Products.
4. Delivery/Access. Licensee may access the Suitecx Products by the methods stated in the applicable Order Form (such methods subject to revision by Suitecx on notice to Licensee), and only in accordance with the limitations and restrictions set forth in this Agreement and in such Order Form(s). Licensee shall hold and cause all of its Authorized Users to hold any passwords/user IDs issued by Suitecx or by Licensee (in connection with access to a Service) in strict confidence, and Licensee shall instruct all Authorized Users of their obligations in this regard. Licensee shall not permit the sharing of user IDs or passwords, or simultaneous access to a Suitecx Product via the same user ID or password, or otherwise. Suitecx shall not be liable or otherwise responsible for any of the following: (i) any communications connection by which data is transmitted to or received from a Suitecx Service; (ii) any communication delays or interruptions of the Suitecx Products; (iii) the transmission to Licensee of the Suitecx Products and/or Software; or (iv) any fees payable by Licensee for any communication lines, to any third-party network operator or to any other person, firm or entity.
5. Additional Order Forms. The parties may add additional Suitecx Products or Software to this Agreement in the future under a new Order Form signed by authorized representatives of both parties. Each Order Form that the parties sign shall be a separate agreement, which will incorporate therein the terms and conditions of this Agreement, except for any provisions in this Agreement that such Order Form specifically excludes or modifies. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall prevail, unless the Order Form expressly states that it governs with respect to any provision, in which case the Order Form shall govern with respect to such provision. Except as may be specifically provided for in an Order Form, any changes contained in any Order Form shall not modify this Agreement with respect to any other Order Form.
2. TERM/TERMINATION.
1. Commencement Date. This Agreement shall commence on the Effective Date set forth above and shall continue in effect for as long as any Order Form entered into pursuant to this Agreement remains in effect. The term of each Order Form will commence on the date specified therein (the “Commencement Date”) and shall continue for the period of one-year plus any Renewal Term(s) and in accordance with the provisions stated therein.
2. Term. Unless another period is specified in the applicable Order Form, the initial term of each Order Form (“Initial Term”) as it applies to the Suitecx Products set forth therein and subscribed to thereunder shall be for a period of one (1) year following the Commencement Date of such Order Form and it shall be automatically extended for successive renewal terms of one (1) year each (each a “Renewal Term”), unless either party notifies the other in writing of its decision not to extend the term of the Order Form at least thirty (30) days before the expiration of the term then in effect. Unless another period is specified in the applicable Order Form, the initial term of each Order Form (“Initial Term”) as it applies to the Suitecx Products set forth therein and subscribed to thereunder shall be for a period of one (1) year following the Commencement Date of such Order Form. You may renew the term of the Agreement (each a “Renewal Term”) for successive one (1) year terms by providing at least 30 days written notice to Suitecx of Your intent to renew, unless either party notifies the other in writing of its decision not to extend the term of the Order Form at least thirty (30) days before the expiration of the then-current Initial Term or Renewal Term.
3. Breach. In the event of a breach by either party of any material term or provision of this Agreement as it relates to any Order Form, the non-breaching party may terminate the applicable Order Form by giving the breaching party thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period. In the event of a breach of any material term or provision of this Agreement or any Order Form in relation to some or all of the Suitecx Products on the part of Licensee, Suitecx shall have the right to terminate this Agreement in its entirety and all Order Forms; provided, however, that such termination shall not take effect if Licensee cures or corrects the breach within thirty (30) days after the date of Suitecx’s written notice of such termination.
4. Bankruptcy/Insolvency. Either party may terminate any or all Order Forms upon written notice to the other if the other party is adjudicated as bankrupt or insolvent or if a petition in bankruptcy or winding up is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy or insolvency laws.
5. Termination. Upon any termination of any Order Form or portion thereof by either party, Licensee shall immediately cease all use of the terminated Suitecx Product or portion thereof provided under that Order Form; and Licensee shall cease using Suitecx Products and any portion thereof, including any copies thereof, on all of Licensee’s electronic or other systems in Licensee’s possession or control. At Suitecx’s written request, a senior officer of Licensee shall certify to Suitecx in writing that Licensee has fully complied with this requirement.
6. Termination of Order Forms. Upon the last termination date set forth on the Order Forms You have executed, this Agreement shall automatically terminate.
3. FEES AND CHARGES.
1. General. Licensee shall pay all fees and charges stated in the Order Forms attached hereto, in United States Dollars (unless specified otherwise in the Order Form(s)) (including any software license, maintenance and installation fees) plus all applicable taxes, including, but not limited to, value-added, sales, use and similar taxes, within thirty (30) days after receipt of Suitecx’s invoice. Suitecx may increase its fees and charges for any Suitecx Products at any time after the Initial Term by providing prior written notice to Licensee, but (except as provided in Section 3.B below) Suitecx shall not increase its fees and charges for any Suitecx Product subscribed to hereunder more than once during any twelve (12) month period. Payment for any Renewal Term shall be payable in advance of the commencement of such Renewal Term (and will be invoiced by Suitecx in the 30-day period preceding the commencement of such Renewal Term).
2. Changes in Authorized Users/Service(s). Licensee may request Suitecx to increase or decrease the number of Authorized Users for or by which a Suitecx Service or Software is accessed, used, installed or displayed, subject to the following: (i) any increases to the number of Authorized Users or the addition of any new Service(s) that are agreed to by Suitecx shall be subject to upward adjustments on a pro-rated prospective basis and Suitecx shall adjust such fees to reflect Suitecx’s rates in effect as of the date of the increase; and (ii) Licensee may decrease the number of Authorized Users or terminate any existing Service(s) by giving Suitecx written notice at least thirty (30) days before the next renewal date of the applicable Order Form, such decrease or termination of the Service(s) and the corresponding adjustment of fees to take effect on the next renewal date.
3. Late Payment. Failure by Licensee to pay any fees or other charges within thirty (30) days after the corresponding invoice date shall constitute a material breach of this Agreement and the applicable Order Form. Suitecx may assess a late charge at the rate of one and one-half percent (1� %), or the highest rate permitted by law (whichever is lower), per calendar month on all amounts due and not paid within thirty (30) days after the due date until Licensee makes payment in full. In addition to all other rights and remedies available to Suitecx at law or in equity, Suitecx also may suspend delivery of the Service(s) or any component thereof for as long as any such amount remains unpaid after such thirty (30) day period.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. SUITECX, ITS AFFILIATES AND ALL OF THEIR THIRD-PARTY LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE SUITECX PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE SERVICE(S), INFORMATION, DATA, SOFTWARE OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. THE SUITECX PRODUCTS AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND LICENSEE’S USE OF THE SUITECX PRODUCTS IS AT LICENSEE’S OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL SUITECX, ITS AFFILIATES OR THEIR THIRD-PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, TRADING LOSSES, OR LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. SUITECX, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST LICENSEE BY THIRD PARTIES EXCEPT FOR INFRINGEMENT AS DESCRIBED HEREIN. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF SUITECX, ITS AFFILIATES, AND THEIR THIRD-PARTY LICENSORS IN CONNECTION WITH THE SUITECX PRODUCTS AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE SUITECX AGREES, AT ITS EXPENSE, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS YOU, YOUR AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND PARENTS, FROM AND AGAINST ALL CLAIMS, AND ANY ASSOCIATED LOSSES, INCLUDING ATTORNEYS’ FEES, TO THE EXTENT CAUSED BY VIOLATION OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT DUE TO YOUR USE OF SUITECX’S SUPPLIED TECHNOLOGY OR SUITECX EQUIPMENT. SUITECX REPRESENTS AND WARRANTS THAT THE SUITECX PRODUCTS AND SOFTWARE WILL NOT CONTAIN ANY COMPUTER INSTRUCTIONS, CIRCUITRY OR OTHER TECHNOLOGICAL MEANS SUCH AS VIRUSES, TROJAN HORSES, WORMS OR LIKE DESTRUCTIVE CODE, WHOSE PURPOSE OR EFFECT IS TO DISRUPT, DAMAGE OR INTERFERE WITH YOUR USE OF THE SOFTWARE OR YOUR COMPUTER AND COMMUNICATIONS FACILITIES (“HARMFUL CODE”); SUITECX WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT THE INTRODUCTION OF SUCH HARMFUL CODE TO THE SOFTWARE AND PRODUCTS DURING THE TERM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT, OR ANY SERVICE OR SUITECX PRODUCTS MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
5. AUDIT/INSPECTION. Except as otherwise provided in an Order Form, Licensee shall at all times during the term of this Agreement maintain full and accurate records (including applicable data in electronic format) of its Authorized Users of the Suitecx Products and Services for the most recent thirty-six (36) months. During the term of this Agreement, Suitecx shall have the right, during normal business hours and upon reasonable notice to Licensee, to audit and review relevant portions of those records. Suitecx’s failure to conduct an audit pursuant to this Section 5 shall not relieve Licensee from its responsibilities to comply fully with the terms and conditions of this Agreement and all Order Forms. Suitecx shall bear the costs of any such audit and/or inspection, unless such audit and/or inspection reveals an underpayment to Suitecx of five percent (5%) or more; in such case, Licensee shall reimburse Suitecx for its costs and expenses in conducting such audit and/or inspection. To the extent that any Suitecx Product is being delivered to Licensee via email, Suitecx may incorporate tracking mechanisms to enable Suitecx to determine whether restrictions on use (including the proper number of Authorized Users) are being violated. Such tracking mechanisms shall allow Suitecx to collect information about whether the Suitecx Software and Service distributed by Suitecx for use by Authorized Users via e-mail is forwarded to other e-mail addresses and to determine the IP address or other information regarding such other destination e-mail addresses. Suitecx reserves the right to use such IP address or other e-mail address information to enforce Suitecx’s rights in the event it believes unauthorized redistribution of Suitecx Products has occurred.
6. PROPRIETARY RIGHTS/WAIVERS/INJUNCTIVE RELIEF/HOLD HARMLESS.
1. All proprietary rights (including, but not limited to, copyrights, trade secrets, database rights and trademark rights) in the Suitecx Products, including, but not limited to, all software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of Suitecx, its affiliates and their third-party licensors (if any). Licensee hereby grants Suitecx a limited, nonexclusive, royalty-free, worldwide license to use, reproduce, distribute and display Licensee’s name and logo (“Licensee Logo”) for digital marketing purposes, and hereby grants to Suitecx a limited, nonexclusive, royalty-free, worldwide license to use, reproduce, distribute and display the Licensee Logo on Suitecx’s website(s), advertising, and marketing collateral in order to identify Customer as a customer. Licensee hereby grants a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software, Suitecx Products and Service any suggestions, enhancement requests (other than customization for the Licensee under a separate agreement), recommendations or other feedback that You provide, including all Your Authorized Users, relating to the Software or Suitecx Products and Services. Each Suitecx Product is compiled, prepared, revised, selected and arranged by Suitecx, the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the Suitecx Products constitute the valuable intellectual property of Suitecx, and its affiliates. Licensee shall protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of Suitecx, its affiliates and their third-party licensors in the Suitecx Products (if any), including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Order Form. Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement. No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought. The waiver by either party of a particular breach of this Agreement by the other party shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements. Except as expressly permitted by law (without possibility of contractual waiver) You agree that you will not attempt to reverse engineer, decompile or reverse assemble a Suitecx Product or otherwise seek to gain access to source code or underlying algorithms for any Suitecx Product. You may not copy, modify or create derivative works from the Suitecx Product. You shall not delete, modify or obscure any trademark, copyright notice or other proprietary notice on any Suitecx Product. Licensee shall honor and comply with all reasonable requests made by Suitecx to protect the rights of Suitecx, its affiliates, and their third-party licensors in the Suitecx Products (if any).
2. Copying of, use of, access to or distribution of the Suitecx Products in breach of this Agreement and/or any Order Form shall cause Suitecx, its affiliates and/or their third-party licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. Suitecx, its affiliates and their third-party licensors may enforce any breach of this Agreement by Licensee by means of equitable relief (including, but not limited to, injunctive relief and temporary and preliminary injunctive relief) in addition to any and all other rights and remedies that may be available, without the posting of a bond. In the event Suitecx has reasonable grounds to believe Licensee is violating the terms and/or conditions set forth in this Agreement and/or any Order Form, Suitecx shall have the right to suspend delivery of, or Licensee’s access to, the Suitecx Products.
3. If Suitecx or Licensee wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval, which review and written approval shall not be unreasonably delayed or withheld.
4. Licensee shall indemnify and hold harmless Suitecx and its third-party licensors (if any) from and against any and all costs, claims, damages, expenses and liabilities (including, but not limited to, reasonable legal expenses and court costs) arising from any breach of its obligations, or of the limitations or restrictions set forth in this Agreement and the related Order Form(s).
7. ASSIGNMENT. Licensee may not assign or transfer (including, but not limited to the operation of law) this Agreement, including any Order Form, without the prior written consent of Suitecx and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement. In addition to and notwithstanding the foregoing, if the ownership of Licensee at any time shall pass out of the majority control of its then-current owners by sale of stock or assets, merger or otherwise, Licensee shall give Suitecx written notice not fewer than thirty (30) days before the effective date of any such change of control. Suitecx shall have the right to terminate any or all affected Order Forms by providing written notice to Licensee within thirty (30) days following receipt of such notice of change of control. If Suitecx does not elect to terminate all or any Order Forms, the new owners of Licensee shall assume all of Licensee’s obligations under this Agreement and the applicable Order Forms and shall be responsible for adhering to all of the terms of such Agreement and Order Forms.
8. MISCELLANEOUS; BINDING ARBITRATION; SURVIVAL. This Agreement, together with all Order Forms hereto, represents the entire agreement between the parties hereto in respect of its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with regard to its subject matter. There are no oral or written collateral representations, agreements or understandings. In the event any conflicts between the English language version of this Agreement and any translations thereof, the English language version shall prevail. The provisions and terms of any purchase order or other agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing and signed by an authorized representative of Suitecx. Suitecx shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its control, including, but not limited to, acts of nature, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures. No amendment of this Agreement shall be binding upon the parties unless in writing and signed by authorized representatives of Suitecx and Licensee. No waiver of any term or condition of this Agreement shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. No action taken by either party shall constitute or be deemed to constitute that such party is the agent of the other, or imply that the parties intend to constitute a partnership, joint venture, or other form of association in which either party may be liable for the acts or omissions of the other. This Agreement and all Order Forms and all claims arising out of or relating to this Agreement, any of the Order Forms or the Suitecx Products shall be interpreted, construed and enforced in accordance with the applicable federal laws of the United States and the laws of the State of California without giving effect to the conflicts of laws provisions thereof. The parties hereto and their successors and assigns consent that any controversy between the parties regarding the construction or application of terms or performance under this Agreement, and any claim arising out of or relating to this Agreement or its breach, other than for injunctive relief as set forth in Paragraph Six (6) above, shall be submitted to binding arbitration upon the written request of one party after the service of that request on the other party. The parties shall appoint an arbitrator from JAMS to hear and determine the dispute, and the arbitration shall be conducted pursuant to JAMS’s rules. If the parties cannot agree on an arbitrator, then the Superior Court of the City and County of San Francisco shall choose an impartial arbitrator who shall conduct an arbitration in San Francisco County under JAMS’s rules, and whose decision shall be final and conclusive on all parties. Each party shall have the right of discovery in connection with any arbitration proceeding in accordance with California Code of Civil Procedure Section 1283.05. The cost of the arbitration, excluding legal fees and costs, shall be borne by the losing party or in such proportion as the arbitrator shall decide. The sole and exclusive venue for the arbitration and or any legal dispute, shall be the City and County of San Francisco, California. YOU AND THE COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR THE COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR THE COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND THE COMPANY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, THE COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING. THE PARTIES EACH EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. Sections 1.B, 1.C, 1.D, 1.F, 1.G, 2.E, 2.F, 3, 4, 5, 6, 8, 9 and 10 shall survive any termination of this Agreement or any Order Form.
9. COMPLIANCE WITH LAW. The parties hereto shall comply with all federal, state, local and foreign laws, rules, and regulations now or hereinafter in effect. The parties further agree that they will not engage in, and represents that they are not currently engaged in, the operation of any unlawful transactions or business and Licensee represents that it will not use or permit use or permit anyone to use the Suitecx Products for any unlawful purpose. Licensee agrees that it shall not directly or indirectly export the Software, individually or as part of a system, without first obtaining a license from the U.S. Department of Commerce or any other appropriate agency of the U.S. Government, as required by law . Diversion of products contrary to U.S. law is prohibited.
10. NOTICES. All notices and other communications required to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand or by a widely recognized overnight delivery service (with evidence of the delivery date), or sent by prepaid post or certified mail, with acknowledgment by the receiving party as of the date received, addressed to Suitecx as set forth in the Preamble hereof and to Licensee at such address as identified in the order from or as advised by either party from time to time in writing. No notice hereunder shall be given or made by facsimile or electronic mail.
11. COMMENCEMENT OF SUITECX SERVICE. Commencement of delivery of the Suitecx Products or use of the Suitecx Service before Suitecx has signed any applicable Order Form does not constitute acceptance by Suitecx of any changes made by Licensee to the terms and conditions of this Agreement or any Order Form, and no such changes are binding on Suitecx until an authorized officer of Suitecx has agreed to them in a signed writing.