Firmus Subscription Terms of Service

Firmus Ltd. (“We” or “Firmus”) provides a software as a service construction design risk mitigation platform (the “Firmus Platform”).  

 

These Firmus Subscription Terms of Service (the “Terms”), together with the executed order form entered into between You and Firmus (the “Order Form"), govern your access and use of the Services.

 

“You” or “Customer” means the entity which has entered into the Order Form and which is granted access and use of the Subscription Services.

 

Please read these Terms carefully as they govern your use of the Services. Your Order Form specifies the Subscription Services you are subscribing to and the fees you are agreeing to pay. The Order Form, together with these Terms, as may be updated by Firmus from time to time (collectively, the “Agreement”) constitute the complete agreement between Firmus and You (each a “Party” and collectively, the “Parties”) and supersede any prior discussions or representations regarding your order or use of the Services. Any additional terms and/or conditions which you add or incorporate into any purchase orders, statements of work, order forms, or any other document are excluded and shall be null and void.

 

BY EXECUTING OR CONFIRMING AN ORDER FORM TO WHICH THESE TERMS HAVE BEEN INCORPORATED, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM. IF YOU ARE AN INDIVIDUAL ENTERING INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU ARE AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY.

 

IF YOU DO NOT ACCEPT ALL THE TERMS HEREIN OR ARE NOT AN AUTHORIZED REPRESENTATIVE FOR THE LEGAL ENTITY THAT WISHES TO ENTER INTO THESE TERMS, YOU MAY NOT AGREE TO THESE TERMS.

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1. Definitions. As used in this Agreement, the following terms shall be defined as follows:

1.1. “Affiliate” means any natural person or entity that directly or indirectly, controls or is controlled by or is under common control with a Party.

1.2. “Authorized Users” mean Customer’s employees or authorized contractors of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business and who are subject to a confidentiality agreement with Customer who are granted access and the right to use the Subscription Services.

1.3. “Capacity” means the service capacity or usage limits set forth in an Order Form.

1.4. “Customer Data” means any proprietary, confidential and/or personal data provided by Customer to Firmus in connection with Customer’s use of the Subscription Services.

1.5. “Documentation” means the standard written and published materials regarding the Software issued by Firmus.

1.6. “Effective Date” has the meaning set forth in the applicable Order Form.

1.7. “Feedback” means any suggestion, enhancement, request, recommendation, correction, or other feedback provided by Customer or its Authorized Users relating to the use of the Subscription Services.

1.8. “Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill.

1.9. “Output Data” means any reports, insights, analytics, notices, and other types of information and data that the Subscription Services may generate, provide or make available to Customer.

1.10. “Order Form” means the applicable order form entered into between Firmus and Customer to which these Terms are incorporated as an attachment or through a link.

1.11. “Professional Services” means the training and consulting services related to the Subscription Services, as may be provided for in an Order Form.

1.12. “Software” means the Firmus software products, in object code form only, offered by Firmus as a software as a service on a subscription basis.

1.13. “Subscription Services” means the products and services that constitute the Firmus Platform purchased by Customer on a subscription basis in accordance with the Order Form, which includes, but is not limited to, the Software and Documentation.

1.14. “Subscription Term” means the subscription period identified in any Order Form for which Firmus has committed to provide, and Customer has committed to pay for, the Subscription Services.

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2. Subscription Services. Subscription Services are purchased by Customer as subscriptions during the Subscription Term specified in an Order Form.

 

3. Subscription License. In consideration of the payment of all Fees (as defined below) set forth herein, and subject to Customer’s compliance with Customer’s undertakings herein contained, Firmus hereby grants during each Subscription Term, and Customer hereby accepts, solely for its internal use, a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable (except as otherwise provided in this Agreement’s assignment clause) limited right for Customer’s Authorized Users to access and use the Software in accordance with the Capacity set forth in the applicable Order Form (the “Subscription License”).

 

4. Evaluation Service. Firmus may grant you access to the Subscription Services on a trial basis (the “Evaluation Service”). You may only use the Evaluation Service for your internal evaluation purposes for a period of thirty (30) days, unless otherwise stated in an Order Form (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, you understand and acknowledge that Firmus is providing you with access to the Evaluation Service (i) on an “AS IS” basis; (ii) with no maintenance or support; (iii) with no indemnification obligation by Firmus. Firmus disclaims all warranties and makes no representations in connection with your access and use of the Evaluation Service. Firmus may restrict and limit your access to the Evaluation Service and may block some features that may be provided as part of the Subscription Service. At the end of the Evaluation Period, your access to the Evaluation Service will be terminated unless: (i) your Order Form included an auto-renewal clause which converts your Evaluation Service to a full Subscription Service; or (ii) you execute a new Order Form.

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5. Professional Services. Firmus may provide Customer Professional Services either on an hourly basis or by way of “Service Packages,” at Firmus’ discretion, in each case at the then-applicable Fees and pursuant to a mutually agreed upon statement of work or as part of an Order Form.

 

6. Additional Purchases. If Customer elects to purchase additional Subscription Services or Professional Services, or any other services as may be agreed upon from time to time by the Parties, the Parties will execute an additional Order Form or amend the existing Order Form.

 

7. Future Functionality. Customer acknowledges that any purchase of Subscription Services hereunder is not contingent upon (a) the delivery of any new or modified functionality or features that are not available to Firmus’ customers as of the Effective Date, or (b) any oral or written public comments, statements or representations made by Firmus regarding any such new or modified future functionality or features.

 

8. Customer Feedback. Any Feedback is and shall be given voluntarily. Customer hereby grants to Firmus an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use and incorporate into its products and services any Feedback and to disclose, reproduce, distribute, and otherwise exploit the Feedback without attribution to Customer. Feedback, even if designated as confidential, shall not create any confidentiality obligation hereunder.

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9. Scope of Rights; Restrictions on Use.

1. Scope. This Agreement confers no title or ownership and is not a sale of any rights in the Subscription Services. All rights not expressly granted to Customer are reserved solely to Firmus and/or its licensors. Nothing herein should be construed as granting Customer, by implication, estoppel or otherwise, a license relating to the Subscription Services other than as expressly stated in this Agreement.

2. Restrictions. Pursuant to the Subscription License granted hereunder, Customer may only use the Subscription Services within Customer’s organization and for internal purposes. Customer agrees that Customer will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Software, (ii) modify the Subscription Services, (iii) otherwise translate or use the Subscription Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign (except as otherwise expressly provided herein) the Subscription Services to any third party, whether with or without consideration; (v) render any services to third parties using the Subscription Services; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Subscription Services; (vii) allow any third parties to use the Subscription Services (except as otherwise expressly provided herein); or (viii) interfere with, burden or disrupt the Subscription Services’ functionality. Customer may not make any copies of the Subscription Services or any portions thereof.

3. CUSTOMER MAY NOT USE THE SUBSCRIPTION SERVICES FOR, OR IN CONJUNCTION WITH, ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY LAW APPLICABLE IN THE JURISDICTIONS WHERE CUSTOMER ENGAGES IN ACTIVITY OR BUSINESS, INCLUDING ANY APPLICABLE LAWS AND REGULATIONS GOVERNING PRIVACY, DEFAMATION, UNLAWFUL DISCRIMINATION, MASS EMAIL AND SPAM, CONSUMER PROTECTION, UNFAIR COMPETITION, AND FALSE ADVERTISING. CUSTOMER MAY NOT USE THE SUBSCRIPTION SERVICES FOR, OR IN CONNECTION WITH, ANY ACTIVITY THAT MAY BE DEEMED, OR ENCOURAGE ACTIVITY THAT MAY BE DEEMED THREATENING, HARASSING, MISLEADING, DECEPTIVE, ABUSIVE, VULGAR, OBSCENE OR PORNOGRAPHIC. FIRMUS MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SUBSCRIPTION SERVICES. FIRMUS MAY TERMINATE THE AGREEMENT WITHOUT PRIOR NOTICE AND AT ITS SOLE DISCRETION, IF FIRMUS DEEMS CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO BE FRAUDULENT OR ABUSIVE.

4. Affiliates. Notwithstanding anything to the contrary herein, the rights granted to Customer hereunder may be exercised by Customer’s Affiliates and/or independent contractors performing services on behalf of Customer and/or such Affiliates, provided that Customer shall remain responsible at all times for such Affiliates’ and independent contractors’ adherence to all applicable terms and conditions of this Agreement and shall be primarily liable for any breach of this Agreement by such Affiliate and/or independent contractor.

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10. Proprietary Rights and Confidentiality.

1. Subscription Services, Professional Services, and Derivative Works. Firmus (or its licensors, as applicable) will retain all title to and ownership of the Subscription Services, Professional Services, and all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works, but excluding any Customer Data provided by Customer (collectively, the “Derivative Works”) thereof developed by Firmus or anyone else, including Customer, including all Intellectual Property Rights and, except for the expressed limited license granted hereunder, Customer shall have no rights in or claims with respect thereto. To the extent it shall be determined that Customer has any right in connection with the Subscription Services, Professional Services, or Derivative Works other than the limited specific license hereunder, Customer hereby irrevocably: (i) assigns to Firmus, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, and all Intellectual Property Rights that Customer may have in or to the Subscription Services, Professional Services, Derivative Works, and/or related Intellectual Property Rights; and (ii) agrees to take any lawful action that Firmus reasonably requests to vest or protect our right, title and interest therein (at Customer’s sole cost).

2. Customer Data; Output Data. Customer shall have all right, title and Intellectual Property Rights in its Customer Data and the Output Data. Customer hereby grants Firmus a non-exclusive license to use, store, process, analyze, and display in connection with the Subscription Services all Customer Data and Output Data during the term of this Agreement for the limited purposes of performing Firmus’ obligations under this Agreement and providing the Subscription Services to Customer. Prior to providing any Customer Data to Firmus, Customer shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Data as necessary to enable Customer to grant the rights granted by this Section 10. Firmus may aggregate and de-identify Customer Data and Output Data provided through the Subscription Services (“Anonymized Data”). Firmus may use the Anonymized Data for Firmus’ internal business purposes, including enhancements to the Platform and to analyze, improve, support and operate the Subscription Services.

3. Confidential Information.

   1. General. Each Party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Notwithstanding the foregoing marking requirements, the Subscription Services, training materials, technical information and other code or data of any type provided by Firmus (or its agents), the pricing offered by Firmus to Customer, and this Agreement’s terms and conditions are Firmus Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.

   2. Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.

   3. Use and Disclosure Restrictions. Neither Party will use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but, in no event, less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to contest such order or requirement, unless it is not legally prevented to provide such notice to the other Party; and (ii) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such Party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.

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11. Fees and Payments.

1. Fees. By entering into this Agreement, Customer hereby agrees to pay the fees specified in the Order Form (the “Fees”) in accordance with the payment terms set forth herein. Firmus will invoice Customer upon execution of this Agreement the Fees or as otherwise provided in an Order Form.

2. Taxes. All Fees due and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges and/or duties, which shall be Customer’s responsibility. Taxes based on Firmus’ net income or gross receipts shall be Firmus’ responsibility.

3. Payment Terms. Unless otherwise specified in an Order Form, all invoices shall be due and payable within thirty (30) days after the invoice date. Payments received by Firmus under this Agreement after their due date will incur late charges at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, and such amounts will be billed to Customer by Firmus.

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12. Limited Warranty, Limitation of Liability and Indemnification.

1. Limited Warranty. Firmus represents and warrants to Customer during any Subscription Term that (i) Firmus (or its licensors) is the sole owner of the Software, and has all the necessary rights thereto to grant Customer the subscriptions to the Subscription Services as contemplated hereunder, and (ii) the Software shall materially conform to the applicable Documentation during the Subscription Term.

2. Limitations on Limited Warranty. THE FOREGOING LIMITED WARRANTY DOES NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ALL OR ANY PART OF THE SUBSCRIPTION SERVICES RESULTING FROM: (I) USE OF THE SUBSCRIPTION SERVICES OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION; (II) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE SUBSCRIPTION SERVICES PERFORMED BY ANYONE OTHER THAN FIRMUS OR UPON FIRMUS’ WRITTEN AUTHORIZATION; OR (III) ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE SUBSCRIPTION SERVICES WITH OTHER HARDWARE OR SOFTWARE. Customer's sole and exclusive remedy for breach of the warranties set forth in Section 12.1 shall be that Firmus, at Firmus' sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Subscription Services within thirty (30) days after receiving written notice of the breach of the warranty that describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by Customer for such Subscription Services (after deducting amounts paid for actual use of the Subscription Services by Customer).

3. Professional Services Warranty. All employees of Firmus performing Professional Services hereunder will have the requisite skill and training to perform Firmus’ obligations in a good and workmanlike manner consistent with professional standards in Firmus’ industry. Customer’s sole and exclusive remedy for any breach of the foregoing Professional Services warranty shall be, at Firmus’s option, re-performance of the non-conforming Professional Services one time, or a refund of all prepaid Fees paid by Customer for the applicable non-conforming Professional Services.

4. Customer Warranties. Customer represents and warrants that: (i) its (and its Authorized Users’) access to and collection, use, relocation, storage, disclosure, transfer, and disposition of Customer Data shall comply with all applicable laws, including without limitation all privacy and data security laws, (ii) it shall at all times use the Subscription Services in compliance with the terms hereof and applicable law; (iii) no Customer Data (a) infringes any intellectual property or other rights of any third party, (b) contains any defamatory, libelous, pornographic or otherwise offensive material, or (c) contains any viruses, worms or other harmful or disruptive component; and (iv) it has the legal right and ability to provide the Customer Data for the purposes set forth herein.

5. Mutual Representations and Warranties. Each Party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; (ii) it has the right and full power and authority to enter into this Agreement; and (iii) it will comply, at all times, with all applicable laws.

6. Exclusions. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, FIRMUS PLATFORM, OUTPUT DATA, DOCUMENTATION, PROFESSIONAL SERVICES, AND ANY OTHER FIRMUS PRODUCTS OR SERVICES PROVIDED BY FIRMUS ARE PROVIDED “AS IS,” AND FIRMUS, ITS AFFILIATES, LICENSORS AND SUPPLIERS DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR DATA ACCURACY. FIRMUS DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, FIRMUS PLATFORM OUTPUT DATA OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY FIRMUS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
   
   FIRMUS CANNOT AND DOES NOT GUARANTEE THAT THE SUBSCRIPTION SERVICES WILL DETECT, IDENTIFY, ALERT, OR PREVENT ANY ERRORS, DEFECTS, OR OTHER NON-CONFORMITIES IN ANY CUSTOMER DATA. FIRMUS WILL NOT BE LIABLE FOR ANY ERROR, DEFECT OR OTHER NON-CONFORMITY DETECTED OR NOT DETECTED BY THE SUBSCRIPTION SERVICES. CUSTOMER ASSUMES SOLE AND EXCLUSIVE RESPONSIBILITY FOR ALL ACTS OR OMISSIONS THAT IT, OR OTHERS ON ITS BEHALF CONDUCT IN CONNECTION WITH ITS USE OF THE SUBSCRIPTION SERVICES AND OUTPUT DATA, AND FOR ALL CONSEQUENCES RESULTING FROM SUCH ACTIVITIES OR ACTIONS.
    

7. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT, EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE PARTIES’ CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT AND THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO FIRMUS BY THE CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

8. Indemnification by Firmus. Firmus agrees to indemnify, defend and hold Customer and its directors, officers, employees, independent contractors, and/or Affiliates harmless (collectively, the “Customer Indemnified Party”) from and against any third party claims alleging that the Customer Indemnified Party’s use of the Subscription Services infringes and/or misappropriates any (i) issued U.S. patent, (ii) registered trademark, (iii) registered copyright, (iv) trade secret, and/or (v) other Intellectual Property Right. If Customer is, or Firmus believes it may become, prohibited from continued use of the Subscription Services by reason of an actual or anticipated claim of infringement, Firmus shall, at its option and expense, (i) obtain for Customer the right to continue using the Subscription Services, (ii) replace or modify the Subscription Services so that they are no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, terminate this Agreement and/or the Order Form and refund to Customer a prorated portion of any pre-paid Fees paid by Customer as of the date of termination for the Subscription Services subject to the claim, in which case Customer will cease use of the Subscription Services and return or provide to Firmus all materials related to the Subscription Services subject to such claim. The indemnification set forth in this Section 12.8 does not apply to the extent of Customer’s negligence, abuse or misapplication of the Subscription Services; use of the Subscription Services other than as specified in the applicable Documentation; any alterations, modifications or adaptations of the Subscription Services performed by anyone other than Firmus; any unauthorized combination or interfacing of the Subscription Services with other hardware or software; or other causes beyond the reasonable control of Firmus.
   THIS SECTION 12.8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT IN CONNECTION WITH THE SUBSCRIPTION SERVICES.

9. Indemnification by Customer. Customer shall indemnify, defend and hold Firmus, and its directors, officers, employees, independent contractors, and/or Affiliates harmless (the “Firmus Indemnified Party”) from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against an Firmus Indemnified Party relating to: (a) a breach or alleged breach by Customer of any of its representations, warranties, covenants or obligations under Sections 9, 10 and 12.4-12.5 hereto; (b) infringement or misappropriation of any Intellectual Property Rights by Customer; or (c) any negligence or willful misconduct of Customer or its representatives.

10. Indemnification Procedures. The Party seeking indemnity (“Indemnified Party”) shall notify the other Party (“Indemnifying Party”) promptly in writing of any claim for indemnification hereunder. At Indemnifying Party's cost and expense, Indemnifying Party shall promptly take control of the defense of such claim, and shall defend such claim, including the control of the defense and all related settlement negotiations; provided that Indemnified Party shall be fully released in connection with any final settlement and shall be entitled to approve the final settlement. Indemnified Party shall provide Indemnifying Party with reasonably requested assistance, information and authority to perform the above. If Indemnifying Party does not assume control of the defense of the claim for which indemnity is being sought, Indemnified Party may defend such claim in such manner, as it deems appropriate at the cost and expense of Indemnifying Party.

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13. Term and Termination.

1. Agreement Term. The term of this Agreement shall begin on the Effective Date and continue until terminated as provided in this Section 13.

2. Subscription Term(s). Each Order Form will terminate at the end of the Subscription Term identified therein, unless earlier terminated as provided in this Section 13. The Subscription Term shall be automatically renewed for additional periods of the same duration as the initial Subscription Term, unless either party requests termination at least fourteen (14) days prior to the end of the then-current term. For any renewal of a Subscription Term, Firmus reserves the right to increase the Fees for Subscription Services.

3. Termination for Convenience. Either party may terminate this Agreement, and/or any Order Form for convenience upon thirty (30) days’ prior written notice; provided, however, that Customer shall not be entitled to any refund of any Fees, and any unpaid Fees for any committed Subscription Term shall become immediately due and payable. Notwithstanding the foregoing, in the event of any termination of this Agreement and/or any Order Form by Firmus pursuant to this Section 13.3, Customer shall be entitled to a refund of a prorated portion of any pre-paid Fees paid by Customer in respect of any period following the applicable date of termination.  

4. Termination for Cause. Either Party may terminate this Agreement immediately if the other Party materially breaches or otherwise fails to comply with any material provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice of such breach or failure.

5. Effect of Termination. If an Order Form is still in effect at the time of expiration of this Agreement, then the terms and conditions contained in this Agreement and the relevant Order Form (including all subscriptions and licenses granted by Firmus thereunder) shall continue to govern the outstanding Order Form until the end of the applicable Subscription Term for that Order Form. However, if the Agreement is terminated prior to its natural expiration, then all outstanding Order Forms (and all subscriptions and licenses granted by Firmus thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the Parties in writing. Customer shall immediately return to Firmus any materials provided to Customer as part of the Subscription Services in Customer’s possession. Within thirty (30) days following the termination of this Agreement for any reason, each Party shall return or destroy, as requested by the other Party in writing, any Confidential Information of the other Party. Each Party agrees to certify, in writing, to the other compliance with the foregoing undertakings upon a Party’s request. Termination shall be without prejudice to the rights and remedies of either Party that may have accrued prior to such termination. For the avoidance of doubt, except as expressly set forth in Section 13.3 above, Customer shall not be entitled to a refund of any prepaid Fees upon termination or expiration of the Agreement, and Firmus will not release Customer from its obligations to pay Firmus all Fees that have accrued under this Agreement prior to its termination.

6. Survival. Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including any outstanding payment obligations.

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14. Force Majeure. Except for the obligation to pay monies due and owing neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including, without limitation, labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemic, pandemic, or public health emergency, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, an act of civil or military authority, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.

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15. Miscellaneous.

1. This Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by and construed in accordance with the laws of the State of New York, regardless of Customer’s country of origin or where Customer uses the Subscription Services from, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of New York. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Subscription Services, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in New York County, State of New York.

2. Subject to the confidentiality obligations under this Agreement and upon notification to Customer, Firmus may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of Customer or any of its Affiliates) and display the Customer's logos and trademarks in Firmus' website and promotional or advertising literature, without the consent of Customer. Except as expressly provided herein, Firmus shall not obtain any rights with respect to the Customer's logos and/or trademarks.

3. Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, with the exception of an assignment carried out by Firmus as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of a Firmus’ assets. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.

4. Except as otherwise expressly provided in this Agreement, all notices or demands required or permitted pursuant to this Agreement shall be in writing, and shall be sent (i) by courier or in person with signed receipt, (ii) by nationally recognized overnight delivery service, prepaid, with signature required, or (iii) by facsimile if promptly confirmed by copy sent pursuant to any of the foregoing methods, and in each case shall be sent to the other Party at its address set forth above or to such other addresses as either Party may designate from time to time by notice to the other Party in accordance with this Section 15.4. All notices, demands, and other communications hereunder may be given by any other means (including electronic mail), but will not be deemed to have been duly given unless and until it is actually received by the intended recipient. Notice given by electronic mail will be deemed to have been given when sent so long as no electronic notice is delivered to the sending party indicating that the electronic mail could not be delivered.

5. Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.

6. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.

7. No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto.

8. This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by either Party will supersede, contradict, vary or modify the terms and conditions of this Agreement, and any such document issued by a Party hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between documents, the conflict or inconsistency shall be resolved by giving precedence in the following order: (1) these Terms, including all amendments thereto; and (2) the terms of any Order Form to which these Terms are attached and incorporated or linked.

9. The Parties acknowledge that money damages may not be an adequate remedy in the event of actual or threatened breach of the obligations and/or undertakings hereunder. Therefore, in addition to any other remedies available hereunder, by law or otherwise, either Party will be entitled to seek and obtain injunctive relief and/or any other appropriate decree of specific performance or any other appropriate equitable relief.

10. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.

11. This Agreement, any related Order Form, or any amendments thereto, may be executed in one or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may transmit their signatures via facsimile, scanned PDF, e-signature, or other electronic means with the same effect as if the Parties had provided each other with original signatures.

12. Customer, on behalf of itself and its Affiliates, agrees to comply fully with all applicable laws, statutes, regulations, rules, ordinances, codes, and standards relating to any export controls and economic sanctions laws of the United States or abroad. Any use, transshipment, or diversion of the Software contrary to applicable export control laws or sanctions laws is prohibited. Customer shall exercise diligent efforts to ensure its and its Affiliates’ compliance with this Section 15.

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