Application means one or more of the Accelo software applications listed above or such other software application as notified by Accelo from time to time.
Email means any email or other communications generated or sent through the Service by a User.
Fees means the charges by Accelo for subscription to or use of the Service.
Accelo means Accelo Inc of 530 Howard St, Floor 2, San Francisco, CA.
Order Form means the Accelo order form or forms and any ancillary Accelo terms completed and processed by and with Subscriber to sign up for the relevant Service.
Service means hosting of the specific Accelo software Application identified during the ordering process, developed or licensed, operated, and maintained by Accelo, accessible via accelo.com or another designated Accelo web site or IP address, or ancillary online or offline products and services provided to Subscriber by Accelo, to which Subscriber is being granted access under this Agreement.
Subscriber means the individual or entity that has subscribed for the Service under the terms and conditions of this Agreement.
Subscriber Data means data submitted, stored, sent or received via the Services by Subscriber or a User (as defined below).
Term means the Initial Term or any Renewal Term, as defined in Section 7 below.
USD means United States dollars.
User means Subscriber's employees, representatives, consultants, contractors, customers or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by or for Accelo at Subscriber's request).
As used herein, "personal data", "processing", "processor", "subprocessor", "controller" "data exporter", "data importer" and "data subject" shall have the meanings given to them in Directive 95/46/EC of 24 October 1995.
Subscriber acknowledges and agrees to the terms of service herein. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Subscriber will be subject to this Agreement.
In order to use the Service, Subscriber must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
Subscriber agrees to provide accurate, current and complete information ("Registration Data") about Subscriber as prompted by the registration form, which Subscriber will fill out online in order to gain access to the Service. Subscriber further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current or incomplete in a material way, or Accelo has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Accelo has the right to suspend or terminate Subscriber's account.
Subscriber agrees to provide Accelo with Subscriber's e-mail address, to promptly provide Accelo with any changes to Subscriber's e-mail address, and to accept emails (or other electronic communications) from Accelo at the e-mail address Subscriber specifies. Except as otherwise provided in this Agreement, the Subscriber further agrees that Accelo may provide any and all notices, statements, and other communications to the Subscriber through either e-mail or posting on the Service.
The maximum number of Users that Subscriber may designate under Subscriber's account is the number of seats purchased by Subscriber, and Subscriber may provide and assign unique passwords and User names to each authorized User for each seat purchased. Subscriber acknowledges and agrees that Subscriber is prohibited from sharing passwords and/or User names with unauthorized users. Subscriber will be responsible for the confidentiality and use of Subscriber's (including its employees') passwords and User names.
Subscriber agrees to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by Accelo. Until notified otherwise by Accelo, Subscriber agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Accelo and to follow logon procedures for services that support such protocols. Subscriber acknowledges that Accelo is not responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Accelo or telecommunications facilities, including, but not limited to, the Internet.
Accelo employs security measures designed for the protection of information and data. However, Subscriber understands that the technical processing and transmission of Subscriber's electronic communications is fundamentally necessary to Subscriber's use of the Service. Subscriber agrees that Accelo is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Accelo.
a. Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
b. Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Accelo owns all right, title, and interest in the Service, Applications and the Accelo Technology and underlying software and proprietary and intellectual property rights therein. The use by Licensee of any of these rights is authorized only for the purposes set forth herein and upon expiration or termination of this Agreement for any reason such authorization will cease.
Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure ("Confidential Information"). Confidential Information will also include the Applications, Software, Documentation and any new product or service information. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include:
(i) any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public;
(ii) is known by the receiving party at the time of disclosure as evidenced by its records;
(iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure;
(iv) is independently developed by the receiving party without any breach of this Agreement;
(v) is the subject of a written permission to disclose provided by the disclosing party;
(vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or
(vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate "need to know" the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement. Notwithstanding the above, Accelo may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address. Accelo may assign its rights in this agreement to any third party as it determines in its absolute discretion.
Accelo limits the amount of database storage to 2GB per user unless otherwise noted in the relevant Order Form. Accounts that exceed that amount will be billed an over limit fee of $1.00 per gigabyte per day, or if different, the then-current fee, calculated daily. This storage is distinct from the Storage Service provided by a third party, as defined below.
Your use of the Service must comply with all applicable Laws. This includes laws applicable to you and also laws applicable to Accelo and the recipients of any Email. Examples of applicable laws include laws relating to spam or unsolicited commercial email (UCE), privacy, security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, and other applicable laws. It is your responsibility to know and understand the laws applicable to your use of the Service and the Emails you generate and send through the Service.
The guidelines below are examples of practices that may violate this Agreement when generating or sending Emails through the Services:
Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails).
Using purchased or rented Email lists.
Using third party email addresses, domain names, or mail servers without proper permission.
Sending Emails to non-specific addresses (e.g., firstname.lastname@example.org or email@example.com).
Sending Emails that result in an unacceptable number of spam or UCE complaints (even if the Emails themselves are not actually spam or UCE).
Failing to include a working "unsubscribe" link in each Email that allows the recipient to remove themselves from your mailing list.
Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request.
Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email.
Failing to include in each Email your valid physical mailing address or a link to that information.
Including "junk mail," "chain letters," "pyramid schemes," incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
a. This is a contract for Services and the Application software will be installed, accessed and maintained only by Accelo and no license is granted thereto. Subscriber agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Application, software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. The Subscriber represents, covenants, and warrants that the Subscriber will use the Services only in compliance with Accelo' standard policies then in effect (the "Policy") and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). The Subscriber hereby agrees to indemnify and hold harmless Accelo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber's use of Services or the Storage Service as described below. Although Accelo has no obligation to monitor the content provided by Subscriber or Subscriber's use of the Services, Accelo may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
b. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, web services, long distance and local telephone service (collectively, "Equipment"). Subscriber shall be responsible for ensuring that such Equipment and services are compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Accelo' published policies then in effect. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, ancillary services, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account, Services or the Equipment with or without Subscriber's knowledge or consent.
c. Subscriber acknowledges and agrees that Subscriber is the controller of personal data and Subscriber remains responsible for the obligations of a controller, including but not limited to, the responsibility for complying with any laws and regulations providing for notice, choice, and/or consent prior to transferring the personal data to Accelo for processing. The Subscriber acts as a data exporter, and decides what data to upload and process, or to allow its users/customers to upload and process, on the Services. The data subjects may include the Subscriber's representatives and end users, such as employees, job applicants, contractors, collaborators, partners, and customers of the Subscriber. Data subjects also may include individuals attempting to communicate or transfer Personal Data to users of the Services. Personal Data may include, among other information, personal contact information such as name, home address, home telephone or mobile number, fax number, email address, and passwords; information concerning family, lifestyle and social circumstances including age, date of birth, marital status, number of children and name(s) of spouse and/or children; employment details including employer name, job title and function, employment history, salary and other benefits, job performance and other capabilities, education/qualification, identification numbers, social security details and business contact details; financial details; and goods and services provided. The Subscriber shall disclose personal data to Accelo, the data importer, only as necessary for Accelo to provide the Services in accordance with these Terms of Service.
d. In order to enable the Subscriber to meet requirements under applicable data protection laws pursuant to Articles 25(1) and 26(1) of Directive 95/46/EC of 24 October 1995 (the “Directive”), the parties hereby agree that transfers from Subscriber to Accelo are made subject to these Terms of Service and and (i) the Standard Contractual Clauses (Processors) (“SCC 2010”), with Subscriber acting as the “data exporter” and Accelo acting as the “data importer(s)” (as those terms are defined in the SCC 2010); or (ii) other appropriate transfer mechanisms that provide an adequate level of protection in compliance with the applicable requirements of Articles 25 and 26 of the Directive. Subscriber may terminate the SCC 2010 at its discretion by written notice to Accelo. The SCC 2010 shall apply only to the transfer of personal data to any country not recognized by the European Commission as providing adequate protection of personal data or any recipient not covered by a legal framework deemed by the European Commission as providing an adequate level of protection for personal data. The SCC 2010 are effective as of the Effective Date and will not apply retroactively. The SCC 2010 will automatically terminate upon (i) the end of the Term or otherwise upon conclusion of Accelo's provision of the Services or (ii) Accelo having implemented alternative adequate safeguards in compliance with the applicable requirements of Articles 25 and 26 of the Directive or, as applicable, Article 6 of the Swiss Federal Act of 19 June 1992 on Data Protection, as amended, including the Ordinance to the FADP, and any applicable law or regulation that will amend or replace it, and other applicable local laws and regulations concerning international and onward data transfers (e.g. Binding Corporate Rules for Processors).
e. Accelo shall maintain appropriate administrative, physical and technical safeguards designed to protect personal data provided through the Services as described at www.accelo.com/company/security, to the extent applicable to Accelo’s processing of personal data.
f. Subscriber hereby instructs and authorizes the use of subprocessors to assist Accelo with respect to the performance of Accelo's obligations in provision of the Services. Accelo requires such subprocessors undertake obligations of a subprocessor as required by these Terms of Service. Accelo and its subprocessors provide the Services globally, but any processing of personal data shall only take place in facilities in jurisdictions in which Accelo and its subprocessors support the provision of the Services.
g. For any audits or certifications, except where applicable law requires otherwise, the parties agree they will utilize the details set forth at www.accelo.com/company/security. If such details do not satisfy the requirement, or if Subscriber makes some other request or instruction of Accelo, Accelo shall respond in good faith and provide Subscriber with commercially reasonable information on Accelo's standard processes and an estimate of additional fees and costs that Subscriber would have to pay before Accelo has to grant any requests or instructions that Accelo does not offer as part of its standard services. The Subscriber shall not be obligated to pay such additional fees or costs, unless and until Subscriber, at its sole discretion, agrees to such payment obligations in writing. Accelo shall not be obligated to meet Subscriber's requests or instructions until agreement on additional payments, if any, is reached, and Accelo has received such payments, if any. If the parties, acting reasonably and in good faith, cannot come to an agreement on such payments, requests or instructions, the Subscriber may terminate their use of the Service, subject to Subscriber’s payment of all fees for the then-current term, as such term had originally been agreed by the parties.
h. Until the Termination of Services (under Section 7 of this agreement), Accelo shall provide Subscriber access to the personal data so that Subscriber may correct, delete, or block such personal data. If the Subscriber is unable to correct, delete, or block such personal data, then to the extent permitted by law and pursuant to the Subscribers detailed written instructions, Accelo will make such corrections, amendments, or deletions on the Subscriber's behalf pursuant to a mutually agreeable statement of work in which Subscriber agrees to pay Accelo’s reasonable fees associated with the performance of any such correction, deletion or blocking of personal data. If Subscriber or a User uses the Services to delete any Subscriber Data and the Subscriber Data cannot be recovered by Subscriber or an End User (such as from the “inactive" list feature), this use will constitute an instruction to Accelo to delete the relevant Subscriber Data from Accelo’s systems in accordance with applicable law. Accelo will comply with this instruction as soon as reasonably practicable (but in not less than 30 days to allow for recovery from backups in the instance of an accidental deletion by a Subscriber or User) and within a maximum period of 180 days, unless EU or EU Member State law requires storage. If a Subscriber cancels the Service, Accelo will delete the Subscriber Data from Accelo's systems within a maximum period of 180 days, unless EU or EU Member State law requires storage.
i. In the event of a Security Incident, Accelo will notify Customer in accordance with Accelo’s obligations under the applicable law or regulatory requirement that applies to the Security Incident. “Security Incident” shall mean the misappropriation of personal data located on Accelo systems or processed by providing the Services that compromises the security, confidentiality, or integrity of such personal data. Security Incidents will not include unsuccessful attempts or activities that do not compromise the security of Subscriber data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems. Notification(s) of any Security Incident(s) will be delivered to the Subscriber Email Address or, at Accelo’s discretion, by direct communication (for example, by phone call or an in-person meeting). Subscriber is solely responsible for ensuring that their Email Address is current and valid. Accelo will not assess the contents of Subscriber Data in order to identify information subject to any specific legal requirements. Subscriber is solely responsible for complying with incident notification laws applicable to Subscriber and fulfilling any third party notification obligations related to any Security Incident(s). Accelo’s notification of or response to a Security Incident under this Section 4(h) will not be construed as an acknowledgement by Accelo of any fault or liability with respect to the Security Incident.
j. If Accelo receives a request from a data subject in connection with the processing of such person’s personal data on Subscriber's behalf, then Accelo shall notify Subscriber, to the extent legally permitted; provided, however, that Subscriber shall have the sole obligation of responding directly to such data subject. Accelo shall reasonably cooperate with the Subscriber in the event of an investigation by a data protection regulator or similar authority, if and to the extent that such investigation relates to Accelo's processing of personal data.
k. Accelo shall keep a list of subprocessors and make it available for Subscriber’s review upon request on an annual basis or in the event that a new subprocessor is added. Customer consents to Accelo’s use of subprocessors in performance of the Applicable Services.
a. Unless otherwise indicated by Accelo for the relevant Service, Fees for the subscription or use of a Service are payable and remitted to Accelo, as further described in this paragraph immediately below. Accelo charges and collects non-refundable Fees in advance for use of the Service and no Fees are refundable for any reason during the Initial Term or any Renewal Term. During any Term, Accelo will automatically renew and bill Subscriber's credit card or issue an invoice (a) every month for monthly service, (b) every quarter for quarterly service, (c) each year on the subsequent anniversary for annual service, or (d) as otherwise mutually agreed upon.
b. Notwithstanding the above, Subscribers may elect to make use of a third party Storage Service as supported by Accelo. Subscribers who wish to make use of a third party Storage Service, including but not limited to Amazon's S3 product or the Google Storage product, will need to complete a registration with the relevant third party; the fee for use of the Storage Service is billed separately by the third party, and enables Subscribers to archive resources to the Storage Service, thus reducing the storage calculated under 3.10 Storage Limits. These charges (and all other elements of a Subscriber's Storage Service account) are the responsibility of Subscribers who opt to use the Storage Service, and are in addition to Accelo licensing or Service Fees payable to Accelo.
c. Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Accelo, the Subscriber must pay to Accelo the amount of such taxes or duties in addition to the Service Fees under this Agreement. Notwithstanding the foregoing, the Subscriber may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, Subscriber shall have the right to provide to Accelo with any such exemption information and Accelo will use reasonable efforts to provide such invoicing documents as may enable the Subscriber to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
All payments for Fees shall be due according to the terms in Section 5 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Accelo herein, Accelo reserves the right to suspend or terminate this Agreement and Subscriber's access to the Service if Subscriber's account becomes delinquent for 30 or more days. Delinquent invoices are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for User seats during any period of suspension. If Subscriber or Accelo initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Subscriber agrees that Accelo may charge such unpaid Fees and charges to Subscriber's credit card or otherwise bill Subscriber for such unpaid Fees and charges. Subscriber agrees and acknowledges that Accelo has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber's account becomes delinquent for 30 or more days.
a. This Agreement commences on the Effective Date. Unless earlier terminated under Sections 6 or 7, this Agreement will automatically renew at the end of the initial Term specified in the Order form (the "Initial Term") and any Renewal Term for successive renewal terms equal in duration to the Initial Term, or one year, if the Initial Term is equal to or greater than one year (each a "Renewal Term") at Accelo' then current rates, unless a different rate is specified in the Order Form covering a term of greater than one year. Either party may terminate this Agreement or reduce the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing or through the account cancellation feature contained in the Service at least five (5) business days prior to the date of the invoice for the following Term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of Subscriber's breach), Accelo will make available to Subscriber a file of the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. Subscriber agrees and acknowledges that Accelo has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, more than 30 days after termination.
b. Any breach or delinquency of Subscriber's payment obligations or unauthorized use of the Accelo Technology or Service will be deemed a material breach of this Agreement. Accelo, in its sole discretion, may terminate Subscriber's password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. In addition, Accelo may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that Accelo has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 30 days of payment delinquency or notice of such breach.
c. Sections 2 (Definitions), 3 (Terms of Service for Accelo), 4 (Restrictions and Responsibilities), 5 (Fees, Billing and Renewal) (surviving until all Fees and charges are paid and Subscriber responsibilities fulfilled), 6 (Non-Payment and Suspension) (surviving until all Fees and charges are paid), 7 (Term, Reduction in Users and Termination), 8 (Assignment, Successors and Assigns), 11.b. (Indemnification), 12 (Disclaimer of Warranties), 13 (Exclusion of Damages and Limitation of Liability), and 14 ("General Provisions"), shall survive expiration or termination of this Agreement.
Subscriber shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of Accelo, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.
Subscriber grants Accelo the right to include the Subscriber as a customer in Accelo' promotional material. Subscriber can opt to have their name excluded from such use by Accelo as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to firstname.lastname@example.org; the subject line in such email should be entitled "Non-use of Subscriber Name."
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Accelo represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and substantially in accordance with the online Accelo help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.
a. By Accelo. Accelo shall defend, indemnify and hold Subscriber harmless from all settlements agreed to by Accelo and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party's registered U.S. patent or copyright. Subscriber will be entitled to indemnification only
(i) if Subscriber notifies Accelo in writing within ten (10) days of the date Subscriber first becomes aware of a claim;
(ii) Accelo has sole control of the settlement, compromise, negotiation and defense of any such action; and
(iii) Subscriber gives Accelo all reasonably available information and assistance, at Accelo' expense.
Accelo may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Accelo' sole discretion, terminate Subscriber's right to the allegedly infringing Service and refund to Subscriber a pro rata portion of the amount which Subscriber has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from:
(a) modification of the Service by parties other than Accelo,
(b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service, or
(c) use of the Service other than in accordance with Accelo instructions and documentation. THE FOREGOING STATES Accelo' SOLE OBLIGATION AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
b. By Subscriber. Subscriber shall defend, indemnify and hold Accelo harmless from all third party claims and settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber's infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. Accelo agrees that
(i) it shall provide written notice promptly after it first becomes aware of a claim;
(ii) Subscriber shall have sole control of the settlement, compromise, negotiation and defense of any such action; and
(iii) it shall give Subscriber all reasonably available information and assistance, at Subscriber's expense.
Accelo shall have the right to participate in the defense or settlement with counsel of its own choosing at Accelo' expense, provided however that the same shall be at Subscriber's expense if Subscriber fails to put on an adequate defense of Accelo.
Accelo AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH. Accelo AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT
(A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(B) THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS,
(C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS,
(E) ERRORS OR DEFECTS WILL BE CORRECTED, OR
(F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 10, THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS; ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY Accelo AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL Accelo' AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO Accelo DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. Accelo WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF Accelo IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
This Agreement is governed by the laws of California and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of California. This Agreement, including all Order Forms provided by and entered with Accelo in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not effect the construction and interpretation of any provision of this Agreement. Where this Agreement is executed in hard copy and not entered into by on-line acceptance, this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event of a conflict with the provisions of this Agreement, the provisions in any Order Form shall govern.