CoreBlox Software and Services Terms and Conditions (“Terms and Conditions”)
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND PRINT THEM OR GO TO HTTP://WWW.COREBLOX.COM TO OBTAIN A DOWNLOADABLE COPY OF THE CURRENT VERSION OF THE TERMS AND CONDITIONS TO MAINTAIN A COPY FOR YOUR RECORDS.
BY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR OTHERWISE USING COREBLOX OR COREBLOX-SUPPLIED SOFTWARE OR SERVICES, OR BY CLICKING THE "ACCEPT" BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE "AGREEMENT"), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT.
COREBLOX OFFERS SOFTWARE AND SERVICES ONLY SUBJECT TO THE AGREEMENT AND THEREFORE YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN DOWNLOAD, COPY, INSTALL, UPGRADE, UPDATE, ORDER, RECEIVE OR OTHERWISE USE COREBLOX OR COREBLOX-SUPPLIED SOFTWARE OR SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN COREBLOX IS UNWILLING TO OFFER, LICENSE OR SELL THE COREBLOX OR COREBLOX-SUPPLIED SOFTWARE OR SERVICES TO YOU AND YOU MAY NOT DOWNLOAD, COPY, INSTALL, ORDER, RECEIVE OR USE THEM.
THE AGREEMENT IS BETWEEN COREBLOX (“COREBLOX,” “WE,” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR USING COREBLOX OR COREBLOX-SUPPLIED SOFTWARE OR SERVICES, OR THAT CLICKS THE "ACCEPT" BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, COPY, INSTALLATION, UPGRADE OR UPDATE PROCESS (“CUSTOMER,” “YOU,” OR “YOUR”). IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
1. DEFINITIONS: All capitalized terms defined in the Agreement have the meanings as defined herein. In addition, as used in the Agreement the following terms shall be defined as set forth below:
1.1. “Affiliates” means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. “Ownership” means, for the purposes of this definition, more than 50% ownership.
1.2. “Authorized Machine” means a machine in the Territory meeting the license restrictions herein and the minimum requirements set forth in the Documentation and for which Customer has paid the required fees.
1.3. “Confidential Information” means the proprietary and non-public: technical, financial, marketing, staffing and business information; business strategies, marketing plans, industry and competitive information; technology and pricing information; employee and personal information; and the trade secrets of CoreBlox on the one hand and the Customer on the other hand. Confidential Information does not include information that: (a) was or becomes publicly available or in a party’s possession without breach of the Agreement; (b) is developed by a party independently of and without reference to the other’s Confidential Information; or (c) is rightfully obtained by a party from third parties authorized to make such disclosure.
1.4. “Customer Data” means all Customer data, information and materials that are uploaded by or for you or that is accessed by CoreBlox in connection with your use or CoreBlox’ provision of the Software or Services including without limitation personal information, photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips but does not include Submissions or Usage Data.
1.5. “Documentation” means written information (whether contained in catalogs, maintenance policies, user or technical manuals, training materials, support policies, specifications, copyright attributions or otherwise) pertaining to the Software or Services and made available by CoreBlox with the Software or Services in any manner (including on CD-Rom, via email, on the Website or other on-line format) as updated or amended by CoreBlox from time to time and includes any Order Form(s) or SOW(s).
1.6. “Hosted System” means a computer system on which CoreBlox Server Software is installed and made available for remote use by third parties (whether such use is internal only or involves the provision of services by the third party to others).
1.8. “CoreBlox Server” means the centralized CoreBlox Software platform that is required to enable other Software components to function.
1.9. “Marks” means CoreBlox, CoreBlox and Design or CoreBlox licensed trademarks, logos, symbols, and names.
1.10. “Named User” means only the individual designated and identified by name who is authorized to use the applicable Software or Services.
1.11. "Order Form(s)" means the CoreBlox form evidencing the Customer order, and which may specify, among other things, the number of Software or Service licenses and other services purchased, the applicable fees, the billing period, the Installment Schedule, Term and other items, each such Order Form to be incorporated into and to become a part of the Agreement; and depending on the Software or Services ordered, the Order Form may be completed online, may be Customer’s invoice or billing statement, or may be an SOW.
1.12. “Service(s)” means the CoreBlox services set forth in the applicable Documentation and also includes such Documentation.
1.13. “Software” means CoreBlox or CoreBlox-distributed software including any software provided by CoreBlox to access and use Services and the associated Documentation but does not include any open source software which cannot be licensed under these Terms and Conditions and is therefore subject to its own license.
1.14. “SOW(s)” means a statement of work, work order, or other similar document executed by CoreBlox and Customer which sets forth Services to be performed by CoreBlox.
1.15. “Third-Party Client” means a person or entity to whom you provide information technology services through use of Software or Services where such services provided by you have sufficient added value so that in each case: (i) the Third-Party Client would not reasonably purchase or otherwise acquire such services for the purpose of obtaining the CoreBlox Software or Services; and (ii) your services provided in direct conjunction with the Software or Services cost the Third-Party Client a material amount above what such Software or Service would cost if purchased directly from CoreBlox.
1.16. “Updates” mean bug fixes, hot-fixes or other minor modifications to the Software which are not deemed by CoreBlox in its sole discretion to be an Upgrade.
1.17. “Upgrades” mean any modifications to the Software or Services which are not Updates as determined in CoreBlox’ sole discretion such as those providing enhanced functionality or performance, or that otherwise improve or add to, delete or otherwise modify any aspect of the Software.
1.18. “Usage Data” means any non-personally identifying information relating to or arising from the capabilities, problems, successes, statistics, diagnostics, inventory, composition, configuration, performance (or lack thereof) of: (a) the Software or Services; (b) Authorized Machines or any network to which an Authorized Machine is connected; or (c) any software or hardware loaded on, comprising, or used in connection with or otherwise related to any of the foregoing.
1.19. “Website” means http://www.CoreBlox.com and related CoreBlox websites applicable to Customer or the applicable Software or Services.
2. LICENSE AND RIGHT TO ACCESS. The Software and Services are the property of CoreBlox or its licensors, and are protected by law, including applicable copyright law. Although CoreBlox or its licensors continue to own the Software and Services, after Customer’s acceptance of the Agreement, Customer has license rights to the Software and access rights to the Services during the Term all as set forth in the Agreement. Conditioned upon compliance with the terms and conditions of the Agreement, CoreBlox grants to Customer a nonexclusive and nontransferable license to download, install and use the Software for which Customer has paid the required fees consistent with the Documentation.
3. ACQUISITION MODELS. As set forth in the Documentation, CoreBlox offers different acquisition models
(sometimes in combination with each other) such as the following:
3.1. Perpetual. Under the “Perpetual” license model, subject to the terms and conditions of the Agreement, Customer has a perpetual license to the applicable Software.
3.2. Subscription. Under the “Subscription” model, the Customer has the right to access the applicable Software or Service subject to the terms and conditions of the Agreement, only for the Term.
3.3. On Premise. Under the “On Premise” model, the Software or Services are for deployment on premises and are not hosted by CoreBlox.
3.4 Cloud. Under the Cloud model, all or part of the Software or Services are hosted by CoreBlox in an accessible network location (it being understood that portions may also be On Premises).
4. RESTRICTIONS. Customer agrees to the following restrictions:
4.1. Authorized Machines. The maximum number of Authorized Machines on which the Software may be installed and used is set forth in the Documentation based upon the edition of the Software or Services for which you have paid the required fees. You understand that you are only able to interact with Authorized Machines if a copy of the applicable CoreBlox Software has been loaded onto that machine. You may only install and use CoreBlox Server Software on Authorized Machines owned by you or your Affiliates. You may install and use copies of other CoreBlox Software on Authorized Machines owned by you or your Affiliates. You agree that you will not make the Software or Services available or accessible for use by any third person or entity other than your Affiliates or CoreBlox, either by means of a Hosted System or otherwise. Subject to the foregoing limitations and except as otherwise set forth in the Documentation, a copy of any CoreBlox Software that you install on one Authorized Machine may be moved by you to a different Authorized Machine, it being understood that once you have installed and are using the maximum number of copies of the CoreBlox Software, you will not be able to move CoreBlox Software from an Authorized Machine without deleting the Software or any related account (i.e. on the CoreBlox Server) attributable to that Authorized Machine thereby eliminating further use of any CoreBlox Software on that machine.
4.2. General Restrictions. You acknowledge that the Software and Services contain trade secrets of CoreBlox or its suppliers or licensors. You agree not to disclose, provide, or otherwise make available trade secrets contained within the Software and Services in any form to any third party and you further agree to implement reasonable security measures to protect such trade secrets. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth in the Agreement, you may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. You shall not (A) create Internet "links" to the Software or Service or "frame" or "mirror" any Software or Service on any other machine; or (B) reverse engineer or access the Service or Software in order to (1) build a competitive product or service, (2) build a product using similar ideas, features, functions or graphics of the Software or Service, or (3) copy any ideas, features, functions or graphics of the Software or Service. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE OR SERVICES.
4.3. License Keys. You understand and agree that the Software and Service functionalities may be enabled through the use of “license keys” issued by CoreBlox. For so long as you are not in breach or default with respect to any of your obligations to CoreBlox, CoreBlox will provide you with all license keys necessary to enable you to make normal use of the Software or Services that you have acquired. You agree that CoreBlox may disable or refuse to renew or replace license keys, rendering some or all aspects of the Software or Services unusable by you, at any time to enforce its rights under the Agreement.
4.4. Automated Tracking. You understand that the Software and Services may be programmed to track the number of deployed copies of Software, Authorized Machines, users and other usage and user related data, and you consent to such operations. You at all times will enable, and will not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions.
4.5. No Competitors. You may not access or use the Software or Services if you are a competitor of CoreBlox or if you are working in conjunction with or on behalf of a competitor. In addition, you may not access or use the Software or Service for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.6. Proprietary Rights. You acknowledge that: (a) CoreBlox is the exclusive owner of all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other proprietary rights relating to the Software and Services; and (b) CoreBlox may collect the Usage Data, is the exclusive owner of the Usage Data and may sell, publish or otherwise use the Usage Data for any purpose at its sole discretion.
4.7. License Subject To Compliance. Your license to the Software and right to access and use the Services are and shall at all times remain subject to your compliance with all of the terms and conditions of the Agreement, and shall terminate without notice by CoreBlox to you in the event of a breach by you of any of your obligations under this Section 4 or in the event of any infringement by you of any patents, copyrights, trade secrets or trademarks of CoreBlox.
4.8. Named Users. For items under the Named User model, the Named User(s) are the only individual(s) licensed to use the applicable Software or Services. The maximum number of Named Users is set forth in the Documentation. There may be only one user/employee assigned to a Named User license. Named User licenses cannot be shared among multiple individuals and separate Named User licenses must be purchased for each individual; provided that Customer may assign a Named User license to a new employee if the former Named User licensee employee is terminated from employment or permanently assigned to a new job function not involving the Software or Services. Customer is responsible for monitoring and maintaining its use within the foregoing parameters and agrees to pay additional license fees at list price for any usage in violation of this Section.
5. CHARGES AND PAYMENT.
5.1. General Requirement. Customer agrees to pay CoreBlox when due the applicable amounts in accordance with the Documentation. Customer agrees to be responsible for paying for all fees for the entire Term, regardless of whether such Software or Services are actively used. You agree to cause those who access or use the Software and Services by or through you or your accounts to comply with the terms and conditions of the Agreement and, except where caused by CoreBlox’ gross negligence, to be responsible for payment for all such activity regardless of whether authorized by Customer or not. Except as otherwise set forth in the Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable. This section 5 and all of its subsections apply in all situations in which you directly pay CoreBlox. If you pay a company other than CoreBlox, then the charges and billing terms may be stated by the other company to the extent different then set forth herein. Customer is responsible for all incidental charges related to using the Software or Services including, for example, charges for Internet access, third party software licenses mobile text messaging, or other data transmission. All pricing terms are Confidential Information of CoreBlox.
5.2. Late Payments. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect any amounts. You must pay for all reasonable costs we incur to collect any past due amounts which costs may include reasonable attorneys' fees and other legal fees and costs. CoreBlox may suspend, cancel or otherwise terminate your rights in whole or in part with respect to all Software or Services if you fail to pay in full on time for any Software or Service purchased from CoreBlox, including any failure to make an Installment or Subscription payment.
5.3. Upfront Pricing. If, pursuant to the Documentation, Customer is paying “Upfront” for Software or Service, no refunds, opt outs or conversion are available and Customer agrees to pay all applicable fees for the item in full or the Term in full once an Order Form is accepted by CoreBlox.
5.4. Installment and Subscription Pricing. If, pursuant to the Documentation, Customer is paying installments under an installment schedule (“Installment Schedule”) or on a Subscription basis, except as required by law or as otherwise set forth in the Agreement, no refunds, opt outs or conversion are available and once an Order Form is accepted by CoreBlox, Customer agrees to pay all applicable deposits, fees and Installments for the full Installment Schedule or all Subscription fees for the full Subscription Term in accordance with the Order Form.
5.5. Opt Out, Flexible Cancellation and Conversion Pricing. If, pursuant to the Documentation, Customer is paying under an Installment Schedule, CoreBlox may offer opt-out or flexible cancellation and conversion rights, and except as required by law or as otherwise set forth in the Agreement, no refunds are available and once an Order Form is accepted by CoreBlox, Customer agrees to pay all applicable deposits in full and all Installment payments until such time as Customer opts out or cancels in accordance with the Documentation by providing written notice to CoreBlox.com/contact. The Customer must opt out or cancel with respect to all Software or Services for which opt out or cancelation is available and must pay any applicable conversion fees. Opt out and flexible cancellation with conversion pricing is only available for certain Software where specifically authorized in the applicable Documentation and confirmed on the Order Form.
5.6. Subscription Pricing and Changes. With respect to Software or Services on a Subscription basis, Customer agrees that CoreBlox may from time to time either increase or decrease the fee(s) for all or any portion thereof, and that any such adjustment, when made by CoreBlox, shall apply effective at the expiration of the current Term to the applicable fees that Customer must pay. Customer’s sole remedy in such a case, if it does not wish to pay the adjusted fees, is to elect to terminate the Software or Service at the expiration of the current Term. Any one time, ongoing, or related account or other fees are non-refundable and nontransferable even if prices for related Software or Services are changed. If Customer adds Subscription Software or Services in the middle of a billing month, Customer may be charged in full for that billing month.
5.7. Taxes. CoreBlox’ fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to the Agreement, and you shall be responsible for payment of all such taxes, fees, levies, duties or similar fees, excluding only taxes based solely on CoreBlox’ income.
5.8. Conversion of Trial Period Offers. Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the service by the end of the trial period or you hereby authorize us to charge your payment method for the Software or Service at standard rates.
5.9. Invoices; Errors. We may only provide you with a single invoice and we may provide it via electronic means including via an online billing statement. This may be the only billing statement that we provide. If you request a paper copy, we may charge you a retrieval fee. If we make an error on your invoice, we will correct it promptly after you tell us and we investigate the charge. YOU MUST TELL US WITHIN NINETY (90) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN (90) DAYS AFTER THE ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). If you do not tell us within this time, we will not be required to correct the error. We can correct billing errors at any time.
5.10. Sale and Risk of Loss. With respect to all Software and Services, the parties acknowledge and agree that the sale, passage of beneficial ownership to Customer, passage of risk of loss to Customer and all negotiations, consummation of the Agreement, and payments occur where CoreBlox is located.
6. TERM AND TERMINATION.
6.1. Term and Auto-Renewal. Under the Perpetual model, the Agreement and the rights granted herein shall remain effective in perpetuity unless terminated as set forth in the Agreement. Under the Subscription model, the initial term shall be as set forth in the Documentation. Upon the expiration of the initial term, the Subscription will automatically renew for successive renewal terms equal in duration to the initial term at CoreBlox’ then current fees. For month to month Subscriptions, either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least five (5) business days prior to the expiration date of the current term. For all other Subscriptions, either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration date of the current term. With respect to each Software or Service item, the current term shall be referred to as the “Term” herein.
6.2. Termination. In addition to the rights otherwise set forth in the Agreement and not in limitation thereof, CoreBlox may terminate the Agreement and the rights granted herein in whole or in part with respect to all Software or Services purchased by Customer upon written notice to Customer in the event of a material breach by Customer of the Agreement or any of its obligations to CoreBlox, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the Customer’s receipt of such written notice. Customer may terminate the Agreement with respect to the affected Software or Service upon written notice to CoreBlox in the event of a material breach by CoreBlox of the Agreement with respect to such Software or Service, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the CoreBlox’ receipt of such written notice. Any free, trial, or Pre-Release Software or Services may be terminated by either party at any time with or without notice to the other. CoreBlox will have no responsibility to notify any third party, of any termination or suspension of the Agreement, nor will CoreBlox have any liability for any consequences resulting from any termination, suspension or lack of notification.
6.3. Effect of Termination. In the event of termination, cancellation, or expiration: Customer’s rights to the Software or the Services shall immediately terminate; Customer shall de-install and destroy all copies of Software (including any Documentation) in its possession or control; Customer shall immediately pay CoreBlox for all amounts due through the effective date of termination, cancellation, expiration; all sections of the Agreement other than the license grant in Section 2 shall survive; and except where Customer terminates for CoreBlox’ breach Customer agrees to pay any future Installment or Subscription payments due for the entire Installment Schedule or Subscription Term, as applicable, as consideration for pricing accommodations and other consideration and as a fair approximation of damages and not as a penalty. Any payments due hereunder will be immediately due and payable and can be charged by CoreBlox against any Customer card on file without further prior authorization from Customer and Customer agrees not to dispute any such charges.
7. PRIVACY & SECURITY; CUSTOMER DATA; SERVICE SUSPENSION. The provisions of this section 7 apply if CoreBlox is hosting the Software under the “Cloud” model.
7.2. Account Information and Customer Data. CoreBlox does not claim ownership of any Customer Data. You hereby grant to CoreBlox a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Customer Data solely for the purpose of providing the Software or Services. Except as set forth in the Agreement, as between you and CoreBlox, you retain all right, title, and interest in and to the Customer Data. You, not CoreBlox, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and you agree that CoreBlox shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store any Customer Data. You acknowledge that you bear sole responsibility for adequate security, protection and backup of Customer Data. We strongly encourage you, where available and appropriate, to (a) use encryption technology and passwords to protect Customer Data from unauthorized access, and (b) routinely archive Customer Data. CoreBlox reserves the right to refuse to post or to remove any information or materials, in whole or in part, that CoreBlox believes in good faith to be unacceptable, undesirable, or in violation of the Agreement. Except for a termination for cause by CoreBlox, for 30 days after termination of the applicable Term, CoreBlox will continue to make available to you any Customer Data or other reports that are normally made available through the Software or Service. Other than as set forth in the preceding sentence, CoreBlox has no obligation to provide any information (including Customer Data) to Customer in any specific format. CoreBlox reserves the right to withhold, remove and/or discard Customer Data or other reports without notice for any breach, including, without limitation, your non-payment.
7.4. Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as otherwise set forth in the Agreement, you acknowledge that: (i) we shall be entitled, to suspend access to any portion or all of the Services at any time: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons; (d) if you engage in any conduct or activities that is in excess of average customer usage parameters including but not limited to your bandwidth, CPU or disk space usage and such usage by you is or may adversely affect the performance or availability of the Services, CoreBlox’ infrastructure or resources, or CoreBlox’ other customers; or (e) if you engage in any conduct or activities that CoreBlox in good faith believes to be in violation of any of the terms and conditions in the Agreement; and (ii) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions (all of the foregoing collectively referred to as “Service Suspensions”). Except as may be set forth in an applicable service level agreement, Coreblox shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able; we will endeavor to provide you notice of any Service Suspension, but shall have no liability for the manner in which we may do so or if we fail to do so; it being further understood that CoreBlox may take any mitigating action without liability or notice to Customer in response to the situations described in (i)(c)-(e) above.
8. TRIAL AND PRE-RELEASE SOFTWARE AND SERVICES. Customer acknowledges and agrees that any Pre Release Software and Services (defined as any Software or Services that are not generally released to the public for purchase) may not be at the level of performance or compatibility of a final, generally available Software or Service offering. Furthermore, you understand that, for promotional purposes, from time to time, CoreBlox may enable new functionality for a trial period to show you what is available or new in the Software and Services, and you agree to accept these new functionalities on a trial basis as they are provided to you. Pre-Release Software or Services may not operate correctly and may be substantially modified prior to commercial shipment, or withdrawn in whole or in part. All Pre-Release and Software and Services offered on a trial basis are provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of Pre-Release or trial Software or Services remains with Customer. In no event shall CoreBlox be liable for any damage whatsoever arising out of or related to any Pre-Release or trial Software, Services even if CoreBlox has been advised of the possibility of such damages and Customer’s sole and exclusive remedy will be to terminate use of the Pre-Release or trial Software or Service.
9. MARKS. You acknowledge and agree that: (A) CoreBlox or its licensors is the sole owner of the Marks and the sole beneficiary of the goodwill associated with the Marks; (B) You will not acquire any right, title or interest in the Marks because of your use of the Software; and (C) You will not register, adopt or use any name, trademark, domain name or other designation that includes all or part of any Mark, or any term that is confusingly similar to a Mark, or a translation or transliteration of a Mark and specifically agree not to direct or re-direct communications network traffic to any network address associated with Customer or with any other third party; cause such network traffic to be so directed or so re-directed on behalf of Customer or with any other third party; or list or cause to be listed any Internet website associated with Customer or with any third party in response to a keyword search that receives as input, whether in whole or in part based on the foregoing.
10.1. Each party agrees to hold the other party’s Confidential Information in confidence and not to use it for any purpose other than to provide or receive the Software and Services under the Agreement as applicable. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care.
10.2. Confidential Information may only be disclosed to those Affiliates, employees, contractors and advisors of CoreBlox or the Customer, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions; provided that nothing herein shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process.
10.3. Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information.
11. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; INTERNET DELAYS; EXCLUSION OF
DAMAGES; LIMITATION ON LIABILITY.
11.1. Limited Warranty. CoreBlox warrants that the Software when shipped or transmitted to you will operate substantially in accordance with the Documentation for a period of ninety (90) days from delivery to Customer. Customer's sole and exclusive remedy and the entire liability of CoreBlox under this limited warranty will be at CoreBlox’ option, repair, replacement, or refund of the purchase price of the Software (or if the Software provides the functionality intended by CoreBlox and the error is in the Documentation CoreBlox will correct the Documentation), in each case subject to the condition that any error or defect constituting a breach of this limited warranty is reported to CoreBlox within the limited ninety (90) day warranty period. This warranty does not apply if the Software, or any other equipment upon which the Software is authorized to be used: (a) has been altered, except by CoreBlox or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by CoreBlox, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; or (e) any Software for which CoreBlox does not receive a license fee.
11.2. Disclaimer Of Warranties. EXCEPT AS SET FORTH IN THE PRECEDING SECTION, ALL SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. COREBLOX HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON–NEGLIGENT PERFORMANCE. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE’S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.
11.3. Internet and Fault Tolerance. SERVICES MAY BE SUBJECT TO LIMITATIONS, SECURITY RISKS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COREBLOX ENTITIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, SECURITY BREACHES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SOFTWARE AND SERVICES CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
11.4. Exclusion Of Certain Damages. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN “DIRECT DAMAGES” AS DESCRIBED BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF COREBLOX OR ANY OF THE OTHER COREBLOX ENTITIES, AND EVEN IF COREBLOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.5. Limitation On Liability. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE: (A) FOR SOFTWARE UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SOFTWARE IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) AND ONE DOLLAR (US$1.00); AND (B) FOR SERVICES UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SERVICES DURING THE SERVICES TERM IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) AND ONE DOLLAR (US$1.00).
11.6. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or Services. Customer acknowledges and agrees that CoreBlox has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Customer understands, acknowledges and agrees that if CoreBlox takes any corrective action because of an action of Customer or any Third-Party Clients, that corrective action may adversely affect other Third-Party Clients, and Customer agrees that CoreBlox shall have no liability to you, or to any Third-Party Clients, or any other third party due to such corrective action by CoreBlox. The limitations and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the Agreement.
12. COREBLOX’ OBLIGATIONS RE THIRD-PARTY INFRINGEMENT CLAIMS. CoreBlox will defend, at CoreBlox’ expense, any lawsuit brought against you in any court located within the United States, insofar (but only insofar) as the suit is based on a claim that the Software, as provided by CoreBlox to you, directly infringes any third party patent or copyright, provided that: (A) CoreBlox is notified in writing of the lawsuit within thirty (30) days after you obtain actual knowledge of it, (B) CoreBlox is given full control over the defense of such claims, and (C) you give CoreBlox reasonable assistance and cooperation in its defense of the claim. If your use of the Software is determined in a final, enforceable judgment to infringe a third-party patent or copyright, CoreBlox, at its own expense, shall either (1) procure for you the right to continue using the Software, or (2) modify the Software so that it becomes non-infringing while giving acceptable performance, or (3) in the event that neither of the foregoing options (1) and (2) are reasonably available to CoreBlox, terminate the Agreement with respect to the infringing Software (and/or any related Services) and, in the case of Perpetual Software, provide a refund to you an amount equal to all sums received by CoreBlox from you on account of the Software furnished by CoreBlox to you, multiplied by a factor the numerator of which is the total number of days of the term of the license minus the number of days during which your license to use the Software was effective and the denominator of which is the total number of days of the term of the license. In the case of all Subscriptions and Software for which Customer has Installment payments remaining on the Installment Schedule, CoreBlox may terminate the Agreement without compensation or other liability. Notwithstanding anything to the contrary in the Agreement, CoreBlox will have no obligation to you on account of any third-party claim of infringement that results from (V) any use by you of the Software in violation of the Agreement, (W) any damage to, or misapplication or misuse of the Software by you; (X) your combination of all or any portion of the Software with software not supplied by CoreBlox; or (Y) your use of any superseded, altered, or allegedly infringing version or release of all or any portion of the Software if such alleged infringement could be avoided by the use of a different version or Upgrade made available to you by CoreBlox; or (Z) any information, design, specification, instruction, software, data, or material not furnished by CoreBlox. You agree to defend, indemnify and hold harmless CoreBlox against any claims of infringement by third parties resulting from any of the circumstances listed in the immediately preceding sentence. The foregoing states CoreBlox’ entire responsibility with respect to intellectual property claims and Customers sole and exclusive remedy.
13. INDEMNITY. You agree to defend, indemnify, and hold harmless CoreBlox and each of its affiliates from and against any and all claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: any actual or alleged violation of the Agreement or applicable law, rule or regulation by you or any person accessing or using the Software or Services by or through you; any actual or alleged infringement or violation by you or any person accessing or using the Software or Services by or through you of any intellectual property or privacy or other right of any person or entity; or any claims by any third party arising out of or relating to Customer’s relationship with any such third party.
14.1. Independent Contractor. Customer is an independent contractor, and nothing contained in the Agreement shall be construed to (A) give either party the power to direct and control the day-to-day activities of the other, (B) constitute the parties as partners, joint venturers, co-owners agents, franchisee or franchisor or otherwise, or (C) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Customer is not an employee of CoreBlox and is not entitled to any CoreBlox benefits. All financial and other obligations associated with each party’s business and are the sole responsibility of such party. Customer represents and warrants that it: (X) will not make any representation, warranties, or guarantees on behalf of CoreBlox, and (Y) will not disparage CoreBlox in any manner or otherwise harm CoreBlox’ business or reputation.
14.2. Choice of Law. The Agreement shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Software or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement. Customer and CoreBlox agree that Customer and CoreBlox MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class representative or class member in any purported class or representative proceeding as a private attorney general. CoreBlox and Customer hereby agree that each is waiving all respective rights to a trial by jury regarding any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Software or Services. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any appropriate jurisdiction. If either party commences litigation in connection with the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
14.3. Assignment. No party may assign the Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except: (A) in the case of CoreBlox, CoreBlox may assign the Agreement without your prior consent to: (1) one or more of CoreBlox’ affiliates, (2) an acquirer of assets, or (3) a successor by merger; and (B) in the case of Customer, you may assign all of your rights in connection with a sale of all or substantially all of Customer’s assets or in connection with a merger or other third-party acquisition of all or substantially all of the business conducted by Customer for which the Software is used by you, and then only if (1) you retain no further rights under this Agreement, (2) your assignee or transferee expressly agrees in writing to assume all of your obligations under this Agreement, (3) your assignee or transferee is no less capable of performing this Agreement than are you; and (4) the assignee is not a competitor of CoreBlox or any of its affiliates as determined in CoreBlox’ sole discretion. Unless otherwise agreed in writing by CoreBlox, you will remain jointly and severally liable with any such assignee or transferee for the full and timely performance of all obligations under this Agreement. Notwithstanding the foregoing, any actual or proposed assignment to a competitor of CoreBlox or change in control of you that results or would result in a competitor of CoreBlox directly or indirectly owning or controlling 50% or more of you shall entitle CoreBlox to terminate the Agreement for cause in whole or in part immediately upon written notice. Any purported assignment in violation of this section shall be void.
14.5. Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of its any of obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under the Agreement.
14.6. Severability. If any of the provisions of the Agreement shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Agreement, which shall continue in full force and effect.
14.7. Verifying Compliance And Customer Records. Customer grants to CoreBlox and its independent accountants the right to examine Customer's books, records and accounts during Customer's normal business hours to verify compliance with the Agreement. In the event such audit discloses non-compliance with the Agreement, Customer shall immediately pay to CoreBlox the appropriate fees, plus the reasonable cost of conducting the audit.
14.8. Agreement Priority. The terms of the Agreement govern Customer's access and use of the Software and Services, provided that to the extent: (A) there is an applicable separate non-electronic agreement manually signed by authorized representatives of the parties, or (B) the Software or Service is subject to a separate subscription or other end user license agreement set forth at http://www.CoreBlox.com/Legal. To the extent of a conflict between the provisions of this Agreement, the order of precedence shall be (X) the signed agreement, (Y) the end user license agreement, and (Z) these Terms and Conditions. Except as set forth in the preceding sentence or otherwise indicated in these Terms and Conditions, these Terms and Conditions shall govern in case of a conflict between the Terms and Conditions and the Documentation. If the applicable Software has Upgrades or Updates from an earlier version of the Software or if you make follow on purchases, it is done so on a license exchange basis. You agree by your installation and use of such Upgrades, Updates or new Software or Services: (A) that the current end user license agreement included therewith which will also be set forth at http://www.CoreBlox.com/Legal applies to all of Your Software or Service purchases; (B) to voluntarily terminate your earlier end user license agreement; and (C) that you will not continue to use the earlier version of the Software or transfer it to another person or entity.
14.9. Notices and Electronic Communications. CoreBlox may give notice by means of a general notice on the Software or Service, electronic mail to your e-mail address on record in CoreBlox’ account information, or by written communication sent by first class mail or pre-paid post to your address on record in CoreBlox’ account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to CoreBlox (such notice shall be deemed given when received by CoreBlox) at any time by any of the following: letter sent by confirmed facsimile or third party confirmed mail delivery to CoreBlox at the address set forth on the Website. The Services and Software are conducted and provided electronically and you agree that CoreBlox may communicate electronically with you for matters relating to the Services and Software, including educational information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Software and Services. The parties agree that the Agreement is to be written in English only, unless CoreBlox in its sole discretion releases any part of the Agreement in other language(s). If CoreBlox chooses to release any part of the Agreement in any language other than English, CoreBlox does for so for informational purposes only and you hereby agree that the English language version shall govern and control in all cases.
14.10. Compliance With Law and Export Control. You shall abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with your use of the Software and Service, including those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge that the Software, Services and related technology and technical data (collectively "Controlled Technology") may be subject to the import and export laws of any country where Controlled Technology is imported or re-exported, including U.S Export Administration Regulations. You agree not to export or import any Controlled Technology in contravention to law nor to any prohibited country (such as embargoed countries), entity, or person (such as designated nationals) for which a license or other governmental approval is required or is otherwise prohibited. All Controlled Technology is prohibited for export or re-export to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, North Korea, Syria and Sudan and to any country subject to similar trade sanctions. You further agree that you will not use, export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
14.11. Entire Agreement. The Agreement (including these Terms and Conditions, the Documentation, and the other items referenced herein and therein) constitutes the entire agreement between CoreBlox and you with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between CoreBlox and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to CoreBlox, will have no effect and that the Agreement is the only contract between CoreBlox and you regarding the Software and Services and may only be amended as set forth herein. A printed version of the Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.