UniKey General License
This universal general license is an agreement which governs licenses to and use of the UniKey, Inc. website , successor websites or web pages, as well as access to Offerings and Services as defined (the “UGL”). Offerings include UniKey Products, UniKey Platform, the Extended Applications and related services (the “Services” or “Service”), as well as successor platforms, products, apps and/or services as may be updated from time-to-time (collectively “Offerings”). UniKey, Inc. is hereinafter referred to as “UNIKEY,” “US,” “WE” or “OUR”. Customer is hereby referred to as “CUSTOMER,” “CLIENT,” “YOU” or “YOUR.” You may enter into further supplemental terms and conditions applicable to each specific choice of Offering which shall be set forth in a separate agreement (“Client Services Agreement”) Customer and UniKey will execute applicable Client Services Agreements for Offerings and Services that are or to be purchased from UniKey. You may from time-to-time purchase additional Offerings or select among the Services through the execution of an applicable Client Services Agreement or addendum thereto. Each Client Services Agreement and addendum thereto incorporates these general terms, which may be revised from time-to-time in UniKey’s sole discretion.
USE OF AN OFFERING IS DEEMED TO MEAN YOU AGREE TO THE TERMS OF THIS UGL. IF YOU ARE ACCESSING THIS SITE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU ARE OVER 18 YEARS OF AGE AND HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER,” “CLIENT,” “YOU” OR “YOUR” SHALL ALSO REFER TO 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 MAY NOT USE THE SERVICES.
Table of Contents
3. Our Rights and Responsibilities
6. Fees and Payment for Purchased Services
7. Proprietary Rights and Licenses
9. Representations, Warranties, Exclusive Remedies and Disclaimers
13. Notices, Governing Law and Jurisdiction
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” or “UGL” as the case may be means this Universal General License.
“Beta Services” means Our services that are not generally available to customers.
“Client Services Agreement” means a document or documents specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any further addenda, amendments or supplements thereto. By entering into a Client Services Agreement, Customer and its Affiliates, agents, representatives and assigns agree to be bound by the terms of this UGL.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via UniKey’s website or a login to an applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-UniKey Applications” means an application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is used or developed by or for You not by UniKey.
“Offering” means UniKey’s online platform or products offered on its website, including http://www.UniKey.com/platform/ and any other pages on the website or successor websites, and subject to an applicable Client Services Agreement.
“Purchased Services” means Services that You or Your Affiliate purchase under a Client Services Agreement, as distinguished from those provided pursuant to a Beta Services arrangement.
“Service(s)” means the products, Offerings and services, excluding Non-UniKey Applications, that are ordered by You under a Client Services Agreement and made available online by Us, including associated offline components, as described in applicable Documentation.
“User” or “Enduser”, as the case may be, means an individual who is authorized by You to use a Service, for whom You have ordered or enabled a Service, including services made accessible to and by third parties as well as single-sign-on services, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents and third parties with which You transact business.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Non-UniKey Applications.
2. BETA SERVICES
From time to time, We may invite You to try or evaluate non-commercial services in advance of release (“Beta Services”) at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are NOT considered “Services” under this Agreement, are NOT supported, and may be subject to additional terms. Beta Services are provided “AS IS WHERE IS” and You may NOT rely on the accuracy or performance of any Beta Service. 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 may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. OUR RIGHTS AND RESPONSIBILITIES
3.1. Provisioning of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Client Services Agreement, (b) provide Our standard support for the Purchased Services to You, and/or upgraded support, if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), internet service provider failure or delay, Non-Unikey Application, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3. Further Use of Aggregated Data. Your Data and User data which may include personally identifiable data We collect for purposes of properly provisioning, maintaining and supporting the Offerings and Purchased Services will be protected in accordance with Section 3.2 (Protection of Your Data). Data we collect may be disclosed (a) if required under law or by regulation or other regulatory authority, (b) for purposes of enforcing this Agreement or (c) to protect You and/or the User. We may use Your Data in the aggregate for internal use, quality assurance, market research, to improve the Services or as otherwise permitted by applicable law. We will not sell or otherwise distribute Your Data for commercial purposes. We may transfer Your Data to any Affiliate or UniKey successor in interest
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
4. USE OF SERVICES
4.1 Subscriptions. Unless otherwise provided in the applicable Client Services Agreement, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified a Client Services Agreement. Unless otherwise specified, (a) a quantity in a Client Services Agreement refers to Users, and the Services may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services. We have the right to monitor usage and charge accordingly if You exceed contracted limits set forth in the Client Services Agreements or Purchased Services. If You exceed a contractual usage limit, We may, in our discretion, reduce Your usage so that it conforms to that limit or terminate your rights to access Services. You will be given an opportunity to execute a Client Services Agreement for additional quantities of the applicable Services, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Your and Your Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-UniKey Applications with which You use or link the Services.
4.4 Usage Restrictions. You will not (a) make any Services available to, or use any Service for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy anything from the UniKey website or from an Offering except as may be permitted under the Agreement, a Client Services Agreement or the Documentation, (j) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service in order to build a competitive product or service, or (l) reverse engineer any Service or Offering (to the extent such restriction is permitted by law).
4.5 Safeguards. You shall implement and maintain administrative, physical and technical safeguards that prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of UniKey’s data (including any Customer or User data held by Us) (“UniKey Data”) as may be held or accessed by You. Such safeguards shall include, without limitation, an information security program that meets the highest standards of best industry practice to safeguard UniKey Data. Such information security program will include, without limitation: (i) adequate physical security of all premises in which UniKey Data will be processed or stored; (ii) all reasonable precautions taken with respect to the employment of and access given to You personnel, including background checks and security clearances that assign specific access privileges to individuals; and (iii) an appropriate network security program (which includes, without limitation, encryption of all sensitive or private data). You agree not to utilize any UniKey Data unless it is necessary to do so in order to fulfill an obligation under this Agreement or a Client Services Agreement. You also agree that You will not sell, disclose, transfer, share or rent any UniKey Data under any circumstances.
4.7 Access to Systems. Access, if any, to Our computer, telecommunication or other information systems (“Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel as are separately designated by Us in writing from time to time. Access is subject to business control and information protection policies, standards, and guidelines as may be provided by Us. Use of any other Systems is expressly prohibited. Use of Systems during other time periods or by individuals not authorized by UniKey is expressly prohibited. Without limiting the foregoing You warrant that You have adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, UniKey may audit You to verify compliance with these obligations.
4.9 Removal Non-UniKey Applications. If We are required by a licensor to revise an Offering, or receive information that an Offering may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Offering from Your systems. If We receive information that a Non-UniKey Application hosted by You may violate Our External-Facing Services or applicable law or third-party rights,We may so notify You and in such event You will promptly disable such Non-UniKey Application or modify the Non-UniKey Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Offering, Service and/or use of such Non-UniKey Application until the potential violation is resolved.
5. NON-UNIKEY PROVIDERS
5.1. Third Party Software. As part of UniKey Offerings, UniKey may supply to Customer or incorporate an object code version of software owned and/or licensed by a party other than UniKey (“Third Party Software”). Third Party Software provided to Customer by UniKey will be provided to Customer pursuant to the terms of the licensor’s applicable license and Customer agrees to be bound thereby. Customer will acquire only those rights in the Third Party Software granted by applicable license and accorded by applicable law. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN APPLICABLE CLIENT SERVICES AGREEMENT, UNIKEY PROVIDES THE THIRD PARTY SOFTWARE “AS IS” AND THE WARRANTIES, INDEMNITIES, AND REMEDIES SET FORTH IN PARAGRAPH 9 DO NOT APPLY TO THIRD PARTY SOFTWARE OR ANY PORTION OF THE UNIKEY OFFERINGS CONSISTING OF THIRD PARTY SOFTWARE OR ANY BREACH, INFRINGEMENT, OR MISAPPROPRIATION TO THE EXTENT IT IS CAUSED BY SUCH THIRD PARTY SOFTWARE. Customer acknowledges that all warranty, maintenance, support, service or remedy claims related to the Third Party Software must be made exclusively to the manufacturer of the Third Party Software. Except as otherwise provided, Unikey’s provision of maintenance and support does not apply to Third Party Software or software provided by Customer. We do not warrant or support Non-UniKey Applications or other non-UniKey products or services, whether or not they are designated by Us as “certified” or otherwise, except as may otherwise be specified in a Client Services Agreement.
5.2. Non-UniKey Applications and Your Data. If You install or enable a Non-UniKey Application for use with a Service on behalf of Yourself or Your User or Enduser, as the case may be, You grant Us permission to allow the provider of that Non-UniKey Application to access Your and Your Enduser’s Data as required for the interoperation of that Non-UniKey Application with the Service. We are not responsible for any disclosure, modification or deletion of Your or Your Enduser’s Data resulting from access. If you install or enable a Non-UniKey Application, You grant UniKey all rights and licenses necessary, including access and use of Enduser credentials, to enable UniKey to perform or expand integrations, extending third party applications and/or to allow Endusers to interact with and order additional features, Services and functionality and/or expanded use of third party applications.
5.3. Access to the UniKey Extended Applications. UniKey may directly provide to You and Endusers a service for access to multiple potential applications or integrations (the “Extended Applications”), including without limitation, enabling an Enduser’s credential to sign into another device and access that device’s further functionality.
5.4. Connecting with UniKey Extended Applications. Some integrations require the ability to connect the identity of the end user with a user in another system requiring an advanced interface (API). This is how You may be allowed and how you may allow Endusers to integrate with and enjoy the benefits of the Extended Applications enabling and extending Your and Your users’ device features and functionality. Linking the Enduser to applications within the Extended Applications means the Enduser account, which may reside in Your ecosystem, must be made accessible by Unikey. Integrations for applications extending functionality to additional properties within the Extended Applications, such as use of a smart home application interface, must use account linking further requiring You to establish the code-authorization and grant flow enabling UniKey to connect Your Enduser with the Extended Applications, which in turn enables the Enduser’s device cloud account to access properties in the Extended Applications. Custom APIs may be required so We can link accounts. You grant Unikey all rights and licenses necessary to allow UniKey to access and use Enduser credentials for purposes of conferring additional functionality and/or agree to obtain such rights from Your users for this purpose.
5.5. Integration with Non-UniKey Applications. The Services may contain features designed to interoperate with Non-UniKey Applications. To use such features, You shall enter into a Client Services Agreement and may be required to obtain access to Non-UniKey Applications from their providers, and it may be required that We be granted access to Your account(s) on the Non-UniKey Applications. If the provider of a Non-UniKey Application ceases to make the Non-UniKey Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to anyrefund, credit, or other compensation.
5.6. Single Sign-On (“SSO”). UniKey offers Your Endusers, and such Endusers may select, single-sign-on capabilities upon logging into Your or UniKey’s website, for purposes of accessing all Offerings, including non-UniKey Applications without being subject to a separate registration and/or log-in process service-by-service. Thus, the Enduser receives a single identity on the basis of which UniKey and You may identify and verify that Enduser.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay without deduction or set-off: (i) the fees summarized in any Client Services Agreement for each UniKey Offering purchased by You; and (ii) all reasonable out-of-pocket expenses actually incurred by Us in performing any services or the Services for You. All fees and other charges will be paid in United States dollars. All payments are due within ten (10) days of the invoice date, unless otherwise provided in the applicable Client Services Agreement. Late payments will incur a charge of one and one-half percent (1.5%) per month, not to exceed the maximum amount allowed by law. You will pay any and all applicable federal, state and local sales, use, value added, excise, duty and any other taxes of any nature (except any taxes based on Our net income) assessed on the Services and/or Offerings.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order against a Client Services Agreement or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in a Client Services Agreement for a subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Client Services Agreement. If the Client Services Agreement specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Client Services Agreement. Unless otherwise stated in a Client Services Agreement, 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.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) 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, and/or (b) We may condition future subscription renewals and Client Services Agreements on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), 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 Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.1 (Manner of Giving Notice),before suspending services to You.
6.5. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Offering, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use an Offering. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use an Offering acquired by You pursuant to a Client Services Agreement, subject to this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non-UniKey Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your proprietary data or any Non-UniKey Application or program code.
7.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Endusers relating to the operation of the Services.
8.1. Definition of Confidential Information. “Confidential Information” means any non-public information disclosed by a party or its affiliate, its related entities and/or agents (“Disclosing Party”) designated confidential or that, under the circumstances surrounding receipt, the receiving party (“Receiving Party”) should know is treated as confidential by Disclosing Party. Confidential Information will be kept strictly confidential by Receiving Party and will not, without the Disclosing Party’s authorization, be disclosed to any third party or used by the Receiving Party for its own benefit except as contemplated by this Agreement. All Our Offerings and accompanying information and material provided to You constitute Our Confidential Information, and You agree not to disclose, de-compile, disassemble nor otherwise reverse engineer any UniKey Offering or accompanying information or material. Confidential Information does not include information: (i) known to Receiving Party before receipt hereunder or later independently developed without use or reference to Disclosing Party’s Confidential Information; (ii) lawfully obtained from a third party without restriction and without breach of an obligation to keep it confidential; or (iii) that becomes publicly available other than as a result of an act or omission of Receiving Party. Nothing herein will prevent Us or our employees performing hereunder from providing services or developing materials that are similar or identical to or competitive with those developed or provided under this Agreement. We may use any ideas, concepts, know-how and techniques used, discovered, or reduced to practice while furnishing the Services for the benefit of other of Our customers. The parties recognize and agree that money damages are an inadequate remedy for breach of this Section 8.1 and further recognize that any such breach would result in irreparable harm to the non-breaching party. Therefore, in the event of any such breach, the non-breaching party may obtain injunctive relief from a court of competent jurisdiction to enjoin such activity in addition to any other remedies available to it.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care): (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Client Services Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. 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 that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. Except as otherwise provided in an applicable Client Services Agreement, We warrant, as applicable, that: (i) the Offering will perform in substantial conformance with the applicable user documentation delivered with the Offering or as otherwise set forth on the UniKey website for a period of thirty (30) days from delivery; and (ii) We will perform the Services (as defined in the Client Services Agreement) in a good and workmanlike manner. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.2 (Termination).
9.3. Customer Further Reps and Warranty. Customer represents and warrants that: (i) it has and will continue to have during the Term of the Agreement and any applicable Client Services Agreement the legal right and authority to use and authorize Us to use all Customer Materials (as defined in a relevant Client Services Agreement); (ii) it has and has obtained for UniKey all rights and licenses necessary for UniKey to perform under this UGL and any attendant Client Services Agreement, including without limitations that which is set forth in Paragraph 5 hereof (Non-Unikey Providers); (iii) that Customer will comply with all agreements and licenses governing the use of such Customer Materials and Third Party Software; and (iii) its use of the Products, Services, Non-UniKey Applications and Customer Materials will not violate any applicable laws or regulations or cause a breach of any third party agreement or violate any third party intellectual property right, privacy right, or other right or unreasonably interfere with other of Our customers’ use of UniKey services. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, We have the right, in Our sole reasonable discretion, to suspend immediately any related Services if deemed reasonably necessary by Us to prevent any harm to Us, its other customers and its or their business. We will provide notice and opportunity to cure if practicable depending on the nature of the breach. Customer will indemnify, defend, and hold harmless UniKey for any breach (or third party claim that if proven true would constitute a breach) of this Section 9.3.
9.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UNIKEY MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE PRODUCTS, SERVICES, OR ANY OTHER UNIKEY OFFERINGS OR ANY THIRD PARTY SOFTWARE OR OTHER MATERIALS, SERVICES, INFORMATION, OR TECHNOLOGY, AND UNIKEY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding brought against You by a third party to the extent that a Purchased Service used in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and pay the damages and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of a Claim Against You, but only if: (i) You notify Us promptly upon learning that the claim might be asserted; (ii) UniKey has sole control over the defense and any negotiation for its settlement or compromise; and (iii) You provide such assistance as We may reasonably request. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our sole discretion and at no cost to You (i) modify the Service so that it is no longer infringing, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate the infringing Service upon 30 days’ written notice. The above defense and indemnification obligations do not apply to the extent a claim made is in connection with a Non-UniKey Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your use of a Service in breach of this Agreement or of any representations and/or warranty made hereunder, or which allegedly infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us or for any amounts paid by Us under a court-approved settlement of a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) provide You with assistance as may reasonably be required, at Your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10, including for breach of any warranty or representation or third party claims of infringement or misappropriation of any intellectual property rights.
10.4. Limitations to Obligation to Indemnify. Notwithstanding anything to the contrary in this Section 10, We will not be liable for and will not be required to defend, protect or otherwise indemnify You for: (a) the use of an Offering after We have instructed You not to do so; (b) the use of an Offering other than as set forth in its technical documentation; (c) the combination of an Offering with data, hardware or software provided by anyone other than Us or Our agents; (d) the modification of the Offering by anyone other than Us or Our agents; or (e) compliance with designs, specifications or plans furnished by or on Your behalf.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL UNIKEY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER OR ANY OTHER PARTY ARISING OUT OF SUSPENSION, TERMINATION OR BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL UNIKEY OR ITS SUPPLIERS BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID DURING THE SIX (6) MONTH PERIOD PRECEDING THE ALLEGED CAUSE OF ACTION FOR THE SERVICES THAT GAVE RISE TO SUCH DAMAGES OR LOSSES FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES. Except with regard to payments due UniKey, neither party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control that could not be avoided by its exercise of due care.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. The term of the Agreement will commence upon the date a Service is provisioned and continue through the latest date that any Client Services Agreement is in effect (“Term”). In addition to any termination or expiration provision set forth in this Section 12 or in any Client Services Agreement, We may suspend performance or terminate this Agreement or both, immediately if: (a) You breach any term of this Agreement and fail to cure such breach after a reasonable period not to exceed thirty (30) days (or ten (10) days in the case of non-payment); (b) You become insolvent or otherwise fail to pay its debts to Us or to any third party when they become due in the ordinary course of business; or (c) bankruptcy or receivership proceedings are initiated by or against You. If this Agreement expires or terminates for any reason: (x) all amounts due or to become due will immediately be due and payable to Us; and (y) You will delete, destroy, or return to Us at Our option all copies and partial copies of any Confidential Information, and certify that You have done so by an officer’s affidavit.
12.2. Termination. A party may terminate this Agreement for cause (a) 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 (b) 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.
12.3. Payment upon Termination. If this Agreement is terminated by Us in accordance with Section 12.2, You will pay any unpaid fees covering the remainder of the term of Client Services Agreements. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.4. Surviving Provisions. Sections 8 (Confidentiality), 10 (Indemnity), 11 (Limitation of Liability), 13 (Notice and Governing Law) and 14 (General Provisions) of the Agreement, along with any other provision in the Agreement or accompanying Client Services Agreement intended to survive expiration or termination will survive any termination or expiration if this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice. All notices will be deemed given as of the day: (a) placed with a nationwide overnight delivery service; or (b) certified or registered mail, return receipt requested, is deposited with the United States Postal Service. Customer grants to UniKey the right to use Customer’s name and trademarks solely as a client or customer reference in promotional and marketing materials in accordance with generally accepted industry standards and practices for such references.
13.2. Agreement to Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with Florida law, excluding its conflict of law principles, and Customer consents to the jurisdiction of the federal and state courts of Orange County, Florida, waiving any objection to forum non convenient. UniKey will be entitled to receive from Customer UniKey’s reasonable attorneys’ fees (in addition to any other damages and amounts awarded to it) incurred in connection with any action to enforce the terms and conditions of this Agreement and/or the Client Services Agreements.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, content and/or other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer will comply with all applicable laws, including U.S. Export Administration Regulations and Executive Orders. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Endusers to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. 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 of the above restriction, You will use reasonable efforts to promptly notify Us in accordance with Section 13.1 (Manner of Notice).
14.3. Entire Agreement and Order of Precedence. This Agreement and the UGL constitute the complete and entire statement of all terms, conditions, and representations of the agreement between UniKey and Customer with respect to its subject matter hereof and supersede all prior writings or understandings. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any other or ancillary documentation (excluding any Client Services Agreement) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Client Services Agreement, with respect to the subject matter of such Agreement, (2) this Agreement, and (3) other Documentation.
14.4. Assignment. UniKey may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to a third party. UniKey may perform any obligation pursuant to this Agreement using agents and subcontractors. Except as otherwise provided in this Section 14.4, neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Client Services Agreements), 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. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, legal representative or employment relationship between the parties.
14.4. Third-Party Beneficiaries. Licensors of UniKey shall have the benefit of Our rights and protections hereunder with respect to the applicable content. There are no other third-party beneficiaries under thisAgreement.
14.5. No Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver, amendment, or other modification of this Agreement will be effective unless in writing and signed by the party against whom enforcement is sought.
14.6. Force Majeure and Circumstances out of Our Control. We are not responsible for any failure or delay in its performance under this UGL or any other agreement among the parties which are due to causes beyond Our reasonable control, including without limitation any industrial disturbances, systemic electrical, utility, telecommunications, or other like communications’ failures, unanticipated or unscheduled downtime of whatever nature, government action, blockages, embargoes, riots, labor disputes, strikes, lockouts or shortages, energy, raw materials or supplies, acts of war, acts of terror, earthquake, storms, secondary to other elements of nature or acts of God.
14.7. Severability. If any provision of this Agreement is held unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
[Updated as of September 21, 2016]