FUSIONPRO® SOFTWARE SUBSCRIPTION AGREEMENT
NOTICE TO USER: PLEASE READ THIS FUSIONPRO® SOFTWARE SUBSCRIPTION AGREEMENT (“AGREEMENT” OR “SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE INSTALLING OR USING FUSIONPRO® SOFTWARE.
THIS IS A LEGAL AGREEMENT BETWEEN LICENSEE AND PTI FOR THE FUSIONPRO® SOFTWARE.THE FUSIONPRO® SOFTWARE IS PROVIDED BY PTI AND ITS AFFILIATES FOR USE ONLY WITH THE CORRESPONDING PAID-FOR FUSIONPRO® SUBSCRIPTION LICENSE KEY. BEFORE INSTALLING, COPYING OR OTHERWISE USING THE FUSIONPRO® SOFTWARE, YOU MUST REVIEW AND AGREE TO THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT.
THIS SUBSCRIPTION AGREEMENT WILL INSTALL ON YOUR DEVICE AUTOMATICALLY ALONG WITH LICENSED FUSIONPRO® SOFTWARE, AND MAY ALSO BE REFERENCED AT WWW.FUSIONPRO.COM/FUSIONPRO-SUBSCRIPTION-AGREEMENT, AND/OR VIA WWW.FUSIONPRO.COM/LEGAL-NOTICES.
ACCEPTANCE BY ENTERPRISE AND CORPORATE LICENSEES OF FUSIONPRO® SOFTWARE
NOTE THAT FUSIONPRO® VDP SERVER AND FUSIONPRO® VDP PRODUCER SOFTWARE PRODUCTS ARE LICENSED UNDER THE TERMS OF SEPARATE WRITTEN PTI CUSTOMER AGREEMENTS. LICENSEES OF FUSIONPRO® VDP DESIGNER, FUSIONPRO® VDP SERVER OR FUSIONPRO® VDP PRODUCER SOFTWARE MUST HAVE A WRITTEN AND EXECUTED PTI CUSTOMER AGREEMENT.
FOR ANY ENTITY THAT HAS PREVIOUSLY ENTERED INTO OR ENTERS INTO A SEPARATE WRITTEN PTI CUSTOMER AGREEMENT LICENSING THE FUSIONPRO® VDP SERVER OR FUSIONPRO® VDP PRODUCER SOFTWARE, AND FUSIONPRO® VDP DESIGNER SOFTWARE BUNDLED WITH THOSE PRODUCTS IN AN ORDER, THE EXPRESS TERMS OF THAT PTI CUSTOMER AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT, AND THIS SUBSCRIPTION AGREEMENT SHALL NOT APPLY UNLESS SO STATED.
IN SUCH CASE, WHEN LOGGING IN YOU MAY IMMEDIATELY PROCEED TO ACCEPT AND THEREAFTER ACCESS THE FUSIONPRO® SOFTWARE AS LICENSED UNDER THE PTI CUSTOMER AGREEMENT USING THE FUSIONPRO® LICENSE KEYS PROVIDED THEREUNDER.
ACCEPTANCE BY OTHER CUSTOMERS AND END USERS
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM, AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS SUBSCRIPTION AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT ON BEHALF OF SUCH ENTITY, AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF.
BY ACCEPTING THIS SUBSCRIPTION AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT THIS FUSIONPRO® SUBSCRIPTION IS THE ONLY AGREEMENT BETWEEN YOU AND PTI REGARDING YOUR USE OF THE LICENSED FUSIONPRO® SOFTWARE AND FUSIONPRO® LICENSE KEYS, AND THAT YOU HAVE NOT PREVIOUSLY ENTERED INTO A SEPARATE PTI CUSTOMER AGREEMENT FOR ITS USE.
IF YOU AGREE, REVIEW THE FOLLOWING TERMS AND CONDITIONS AND THEN PROCEED TO CLICK TO ACCEPT THESE TERMS (“ACCEPT”, “OK” OR ANY SIMILAR REPRESENTATION OF AGREEMENT) ON THE APPROPRIATE BUTTON BELOW. YOU MAY THEN, AS REQUIRED, DOWNLOAD AND INSTALL THE LICENSED FUSIONPRO® SOFTWARE USING A FUSIONPRO® LICENSE KEY.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, CLICK TO DISAGREE (“EXIT”, “CANCEL” OR ANY SIMILAR REPRESENTATION OF DISAGREEMENT) ON THE APPROPRIATE BUTTON. FURTHER, IF YOU DO NOT AGREE, YOU MUST IMMEDIATELY UNINSTALL AND DELETE THE FUSIONPRO® SOFTWARE ON YOUR COMPUTER SYSTEMS, ALONG WITH ANY AND ALL DOCUMENTATION AND RELATED MATERIALS. IF YOU HAVE NOT YET INSTALLED THE FUSIONPRO® SOFTWARE USING YOUR FUSIONPRO® LICENSE KEY, YOU MAY COMMUNICATE WITH CUSTOMER SUPPORT AT THE FUSIONPRO® STORE TO DETERMINE IF YOU ARE ENTITLED TO A REFUND ON YOUR FUSIONPRO® SUBSCRIPTION.
Subscription Terms and Conditions
This Subscription Agreement is by and between PTI Marketing Technologies, Inc. dba MarcomCentral®, a Delaware corporation with offices at 201 Lomas Santa Fe Avenue, Suite 300, Solana Beach, CA, 92075 (referred to herein as “PTI” or “Licensor”), and You (“Licensee”), each a Party and collectively the Parties.
Definitions. The definitions set forth below and elsewhere in this Subscription Agreement shall apply to both their singular and plural form, as the context may require.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. For purposes of this Subscription Agreement, PTI and the Ricoh family of companies are Affiliates.
“Device” means a hardware installation of FusionPro® Software on a single computer or its connected computer storage device using a FusionPro® License Key owned or controlled by the Licensee or its business.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via login to the applicable Service.
“Effective Date” means the date on which you download or otherwise obtain a copy of the FusionPro® Software installer or purchase a FusionPro® License Key to install the FusionPro® Software on a Device. Doing so indicates your acceptance of the terms of this Agreement.
“End User” means the licensee accepting this Subscription Agreement on their own behalf, as an individual, or on behalf of an entity, such as a partnership, business or corporation. For purposes of clarity, this document uses “Licensee”, “You” and “End User” interchangeably to refer to the licensed user of the FusionPro® Software, its customer.
“Fees” means the amounts to be paid by End User to PTI via the FusionPro® Store, or if applicable, a PTI Customer Agreement.
“Intellectual Property Rights” collectively means any and all copyrights, patents, patent registration rights, business processes, mask works, trademarks, trade names, service marks, service names, trade secrets, and know-how rights arising or enforceable under U.S. law, foreign law, or international treaty regime.
“FusionPro® License Key” means the unique key provided to licensee for a fee at the FusionPro® Store by PTI for use in accessing, downloading and installing FusionPro® Software according to the license terms of this Subscription Agreement.
“FusionPro® Materials” means information created or obtained by PTI from its content licensors or publicly available sources, for use in conjunction with the FusionPro® Software and Documentation.
“FusionPro® Software” (also “Software”) means the proprietary FusionPro® software products licensed by PTI for use by End User, including without limitation, FusionPro® VDP Creator, FusionPro® Expression, FusionPro® VDP Designer, FusionPro® VDP Producer, and FusionPro® VDP Server, as well as standard and custom services and documentation listed in the applicable PTI Customer Agreement or on the PTI website or FusionPro® Store, and any subsequent improvements, new versions, updates, modifications or additions thereof, as well as such as bug fixes, patches, upgrades, additional or enhanced functions, plug-ins, when, and if made generally and commercially available by PTI (collectively, “Updates”). Version numbers, e.g., FusionPro® VDP Creator 11, are used variously for product feature reference, product documentation, and product support, as well as for reference in pricing and subscription / license terms in the FusionPro® Store.
“FusionPro® Store” means PTI’s online store (or any PTI-designated and commercially licensed affiliate site) for selling FusionPro® License Keys, and for providing product information and support to customers using FusionPro® Software.
“FusionPro® Subscription” means the license granted under the Subscription Agreement, and subject to the terms of payment, license renewal and license period set forth in the Licensee’s purchase order for the FusionPro® License Key in the FusionPro® Store.
“Order” means an ordering document specifying the FusionPro® Software to be provided pursuant to a Subscription Agreement and/or PTI Customer Agreement. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Party” means a party to this Subscription Agreement; PTI and End User may be individually referred to as a “Party” or collectively as the “Parties”.
“Privacy Policy” means PTI’s privacy policy as set forth in the following www.FusionPro.com/privacy-policy.
“PTI” means Printable Marketing Technologies, Inc., dba MarcomCentral, the owner and licensor of the FusionPro® Software, and its Affiliates. For purposes of clarity, this document uses “Licensor” and “PTI” interchangeably to refer to PTI. PTI is an Affiliate of the Ricoh family of companies.
“PTI Customer Agreement” means a separate written FusionPro® Software agreement executed between PTI and an enterprise or corporate customer licensing FusionPro® Software. Without limitation, terms for the purchase of FusionPro® License Keys and the installation and and use of the FusionPro® Software by those parties are contained in such PTI Customer Agreements.
“Subscription Term” means the FusionPro® License Key’s license period set forth in a FusionPro® Software product order accompanying a PTI Customer Agreement. If FusionPro® Software is licensed on the FusionPro® Store, the Subscription Term shall mean a period of one (1) calendar year from the date of purchase of each FusionPro® License Key, unless modified to a different license period by a specific pricing promotion that is paid for and recorded along with the customer’s FusionPro® License Key when obtained at the PTI Store or a PTI Customer Agreement
In consideration of the mutual covenants and Agreements contained in this Subscription Agreement, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree to the following terms and conditions:
1. PAYMENT AND LICENSING.
1.1. Fees and Payments. You will pay all fees specified in Orders made in the FusionPro® Store or in a separate written PTI Customer Agreement. Except as otherwise specified in writing, (i) Order pricing for FusionPro® Software is based on paid-for FusionPro® License Keys that enable the use of FusionPro® Software, not on installations or software usage metrics, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) FusionPro® License Key quantities purchased cannot be decreased nor pro-rated refunds given during the relevant Subscription Term.
1.1.1.Payment Information. You will provide PTI with valid and updated credit card information, or with a valid purchase order or alternative billing document reasonably acceptable to PTI. You are responsible for providing complete and accurate billing and contact information to PTI and notifying PTI of any changes to such information during the Subscription Term.
1.1.2.Payment via FusionPro® Store. If You enter an Order with PTI in the FusionPro® Store, You must provide credit card information to PTI, authorize PTI to charge such credit card for Order(s) of FusionPro® License Keys, and maintain certain contact and billing information online, to enable use of the FusionPro® Software for the Subscription Term. Such charges shall be made in advance of issuing You the FusionPro® License Keys, and auto-renew annually.
1.1.3.Payment under PTI Customer Agreements. If an Order accompanying a PTI Customer Agreement specifies that payment will be by a method other than a credit card or other online payment in the FusionPro® Store, PTI will invoice You in accordance with the relevant Order. Unless otherwise stated in the Order accompanying a PTI Customer Agreement, invoiced charges are due net 30 days from the invoice date.
1.2. License Grant. PTI grants You a limited, non-exclusive, non-transferable, revocable (without the right to sublicense unless provided specifically herein) right and license for a single End User to access, download, install and use FusionPro® Software validated with FusionPro® License Key(s) during the Subscription Term.
1.2.1.Installation and Use Requirements. The FusionPro® Software shall only be (i) installed on a Device, (ii) during the Subscription Term, (iii) by licensed End Users through use of an assigned and valid paid-for FusionPro® License Key. Hardware and operating system requirements for specific FusionPro® Software installations may be found in the Documentation for each respective FusionPro® Software product.
1.3. Ownership; Intellectual Property. Title to and ownership of the FusionPro® Software, as well as all related maintenance documentation and user documentation, and all Intellectual Property Rights in and to the FusionPro® Software and such documentation shall at all times remain with PTI. Any reference to the “sale” of the FusionPro® Software to End User shall be, and be construed as, a sale of a license to the FusionPro® Software as set forth herein. Except for the license expressly granted in this Section 1, this Subscription Agreement shall be not construed to grant to End User any right, title, or interest in any Intellectual Property Rights embodied in or associated with the FusionPro® Software, or any right to copy, modify, or lease the FusionPro® Software, or create any derivative works thereof. For avoidance of doubt, this License Grant does not allow End User, in any manner, to re-sell, convey, assign, distribute or transfer (for fees or for free) the FusionPro® Software or FusionPro® License Keys to a third-party.
1.4. PTI Responsibilities. During the Subscription Term:
1.4.1.PTI shall use commercially reasonable efforts to provide You with technical support, in accordance with PTI’s standard customer and technical support practices. Further details on installation requirements and technical support may be found at www.FusionPro.com/support.
1.4.2.PTI shall use commercially reasonable efforts to provide You with functionality in accordance with PTI’s standard specifications and Documentation for the FusionPro® Software.
1.5. Updates. PTI may in its sole discretion determine what constitutes a commercially available FusionPro® Software Update, including any accompanying license, legal terms and pricing.
1.5.1.Updates to or for the commercially released version(s) of FusionPro® Software from PTI shall be included in the defined term FusionPro® Software and governed by the license and terms of this Subscription Agreement, unless provided with and accompanied by other written terms and conditions from PTI or in a PTI Customer Agreement.
1.5.2.Updates will have sole discretion to determine the time and form for any Updates for its various FusionPro® Software products. You may acquire and download from the PTI Store Updates to the FusionPro® Software if and when such Updates are made commercially available in the PTI Store and/or download site, provided that you have a registered, paid-for license and valid FusionPro® License Key for the product and related Update.
1.5.3.End User Acknowledgment of Periodic Remote Access. During Software installation, first use, and periodically thereafter, End User understands and agrees that the FusionPro® Software will communicate to a remote computer server owned or operated by PTI or its partners for the purposes of registering the FusionPro® Software, determining the validity of the Software serial number, approving the serial number for use on a particular computer, and collecting information about the computer to guarantee its lawful use and to aid in support of its use on the computer. By accepting this Subscription Agreement, the End User agrees to allow the FusionPro® Software to collect such data and transmit it to such a central computer, where it will be secured and stored for an indefinite period of time, provided such data is used solely for the purposes of determining the legal right for the FusionPro® Software to be operated on a given End User computer, and to collect data appropriate to support the End User’s use of the FusionPro® Software on the computer. Intentionally defeating or circumventing the FusionPro® Software’s registration system is a violation of this license agreement and may be a violation of U.S. and international law.
1.5.4.PTI may, at its sole discretion, from time to time, issue Updates of the FusionPro® Software. The FusionPro® Software may automatically connect to PTI or third-party servers via the Internet to check for available Updates to the FusionPro® Software, and may either (a) automatically electronically update the version of the FusionPro® Software that You are using on your personal device or (b) give You the option of manually downloading applicable Updates. If You installed the FusionPro® Software and do not wish to allow PTI to check for available updates to the FusionPro® Software, You may disable this feature by uninstalling FusionPro® Software. By installing the FusionPro® Software and not disabling any automated check for Updates, if applicable, You hereby agree and consent to automatically request and receive Updates from PTI, and that the terms and conditions of this Subscription Agreement shall apply to all of these Updates.
1.5.5.In order to receive notifications, support and product news, qualify for time-sensitive pricing promotions, and receive Updates, End Users must:
maintain their information in the FusionPro® Store, including name, address, email and other requested contact information,
have a current credit card or other payment and billing information on file accepted by PTI, and
opt-in to such notifications (such opt-in is governed by PTI’s Privacy Policy as set forth herein).
1.6. Ownership. Title, ownership rights, and intellectual property rights in and to the FusionPro® Software shall remain with PTI or its third-party licensors and suppliers. The FusionPro® Software is protected by United States Copyright and Trademark Law, copyright and trademark laws of European Union and Japan, and international copyright treaties, as well as other intellectual property laws and treaties. The FusionPro® Software is also subject to issued and pending patents in the United States and other countries.
1.6.1.You agree not to remove or alter any copyright, trademark, registered mark and other proprietary notices on any copies of the FusionPro® Software. PTI and/or its third-party licensors and suppliers reserve all rights not granted.
1.6.2.The FusionPro® Software may also contain documentation, training sample files, images, illustrations, designs and photos (“FusionPro® Materials”), and the copyright of such material belongs to PTI and/or its third-party licensors and suppliers, protected by national and/or international intellectual property laws, conventions and treaties. For clarity, (1) the FusionPro® Materials shall be used for non-commercial and training purposes only, (2) the FusionPro® Materials shall be edited, adjusted and copied only in the manner designated by the FusionPro® Software, and (3) You may use the Materials only for lawful activities and publications.
1.7. Open Source and Other Third-Party Components. Notwithstanding the foregoing license grant, You acknowledge that certain components of the FusionPro® Software may be covered by third-party licenses, including so-called “open source” licenses, which means any licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the FusionPro® Software licensed under such license, requires that the distributor make the software available in source code format (such third-party components, “Third-Party Licenses”). A list of Third-Party Licenses, and associated license terms (as required), for particular versions of the FusionPro® Software is indicated at the end of this Subscription Agreement, relevant user manual/CD, or the license information displayed on your Device/in FusionPro® Software. To the extent required by the licenses covering Third-Party Components, the terms of such licenses will apply in lieu of the terms of this Subscription Agreement. To the extent the terms of the licenses applicable to Third-Party Components prohibit any of the restrictions in this Subscription Agreement with respect to such Third-Party Components, such restrictions will not apply to such Third-Party Component.
1.8. Third-party Legal Notices. You are hereby notified that certain third parties provide software to PTI which is included in or integrated to work with the FusionPro® Software. You acknowledge that the terms of this Subscription Agreement cover the use of third-party software, and that any End User violations of the terms of this Subscription Agreement which involve the use of third-party software may be enforceable by such third parties in addition to PTI. FusionPro® Software licenses certain third-party materials that require notifications about their license terms. You can find a list of these notifications of third-party software and component usage, and, if required, source code listings available for redistribution, at www.FusionPro.com/third-party-legal-notices and in the Documentation accompanying your FusionPro® Software installation.
1.9. Third-party Websites. You may, through hypertext or other computer links from the FusionPro® Software, gain access to websites and use certain services that are not under the control of or operated by PTI, but rather are controlled by third parties. You acknowledge and agree that PTI is not responsible for such third-party sites or services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. These third-party websites/services are subject to different terms and conditions and when You access and use third-party websites/services, You will be legally bound by the terms and conditions of those websites/services. If there is a conflict between this Subscription Agreement and terms and conditions of third-party websites/services, the third-party websites’/services’ terms and conditions will govern with respect to your access and use of those websites/services. Although PTI may provide a link to a third-party website/service from the FusionPro® Software, such a link is not an authorization, endorsement, sponsorship or affiliation by PTI with respect to such website/services, its content, its owners or its providers. PTI provides such links for your reference and convenience only. Accordingly, PTI makes no representations whatsoever concerning such websites/services and does not provide any support related to such third-party sites or services. PTI has not tested any information, products or FusionPro® Software found on such websites/services and therefore cannot make any representations whatsoever with respect thereto. You agree that PTI is not responsible for the content or operation of such websites/services, and it is up to You to take precautions to ensure that whatever You select is free of items such as viruses, worms, Trojan horses and other items of a destructive nature. You are solely responsible for determining the extent to which You may use any content at any other websites/services to which You link from this FusionPro® Software.
1.10. Multiple Versions of FusionPro® Software. You may receive or obtain the FusionPro® Software in more than one version (e.g. for different operating environments; two or more language translation versions; downloaded from an PTI server or on a CD-ROM), however, regardless of the type or number of copies You receive, You may use only the media or version appropriate to the license terms and use restrictions granted above. Each version of the FusionPro® Software requires its respective FusionPro® License Key to install and use.
1.11. Translations. Translations of this Subscription Agreement from English into other languages may be provided for the convenience of customer, either directly or through the FusionPro® store. The Parties acknowledge that the presentation of the Subscription Agreement in more than one language is for the convenience of the customer and to promote understanding of its terms to reach consent and agreement. However, the parties agree that in any conflict of interpretation that arises, the English language version shall control. As well, the provision of translations in other languages shall not be understood by the parties as giving rise to any waiver of the enforcement provisions of this Subscription Agreement; any enforcement of the Subscription Agreement shall be done with respect to the venue and law sections given above. The Parties expressly waive any International treaty rules and laws respecting contract interpretation, enforcement or arbitration, choice of law or venue selection. Similarly, PTI provides language support in its user interfaces and menus in the FusionPro® Software, for the convenience of End Users. As such, PTI will make reasonable efforts to correct reported errors in translation; however, such errors shall not prejudice PTI in the legal enforcement of the Subscription Agreement, and Licensee expressly waives such errors as an independent ground for making claims under or termination of this Agreement by Licensee.
2. End User Responsibilities and License Limitations. You agree to the following:
2.1. You shall not modify, adapt or translate the FusionPro® Software, and further agree not to attempt to reverse engineer, decompile, disassemble or otherwise modify nor attempt to discover the source code of the FusionPro® Software.
2.2. You shall not rent, lease, distribute, lend the FusionPro® Software to third parties or incorporate the FusionPro® Software into a revenue generating product or service.
2.3. You shall not transfer or assign your rights to use the FusionPro® Software to another person or legal entity.
2.4. You shall not resell, distribute or otherwise use the FusionPro® Software on a timeshare, ASP, SaaS or similar basis.
2.5. You license the FusionPro® Software as a single unit, and no End User may separate its component programs for some other use. If bundled with another hardware or software product under your Order, FusionPro® License Keys and FusionPro® Software must be used in conjunction with the bundled products only.
2.6. You shall not to place the FusionPro® Software onto or into a shared environment in order to make it accessible to other users via a public network such as the Internet or otherwise accessible by others other than the Device installation accessible by the licensed End User(s) referred to in Section 1 above.
2.7. As further set forth in section 4.2 below, You shall be responsible for and indemnify PTI for liabilities incurred as a consequence of use by your licensed End Users, whether individuals, company employees and/or a company’s licensed affiliates. Each End User is required to agree to these terms and conditions prior to use of the FusionPro® Software, and Licensees must ensure their compliance with this Subscription Agreement.
2.8. You shall not make backup copies of the FusionPro® Software, as the FusionPro® License Key may be used to download and reinstall the FusionPro® Software at the FusionPro® online store.
2.9. You should keep any FusionPro® Store records containing your FusionPro® Subscription and related order and payment information, and any assigned FusionPro® License Key(s), in a safe place; this may also be required for FusionPro® Software support and software recovery or re-installation purposes.
2.10. Installation; End User Content. In addition to the other duties set forth in this Subscription Agreement, End User agrees to perform the following: (i) follow the processes established by PTI for accessing and using the FusionPro® Software and, (ii) if other or additional FusionPro® professional services are requested by End User of PTI on an Order, then End User will provide PTI with all content, trademarks, logos, and other items (“End User Content”) necessary for PTI to provide the FusionPro® Software services to End User. End User hereby grants PTI a worldwide, non-exclusive, limited right and license to display and use the End User Content only as necessary and appropriate for PTI to provide the FusionPro® Software services to End User, including, without limitation, displaying, publishing, transmitting, and distributing such End User Content on or through the FusionPro® Software, and any FusionPro® Software templates, print or display output files using End User Content. End User represents, warrants, and covenants on a continuing basis, that is owns or has obtained all rights, licenses, waiver, permissions, credits, or attributions necessary for PTI to use the End User Content as contemplated hereunder.
2.11. No derivation of FusionPro® Software code. Except as permitted under applicable law (and then only to the minimum extent so permitted), under no circumstances shall End User, nor shall End User permit any third-party to, reverse assemble, reverse compile, reverse translate or otherwise reverse engineer the FusionPro® Software or otherwise attempt to learn or derive the source code, structure, algorithms or ideas underlying the FusionPro® Software. In no event shall End User use, or permit any third-party to use, the FusionPro® Software in any manner not specifically authorized hereunder, or with the express written permission of PTI.
2.12. U.S. Government Acquisition of the FusionPro® Software. This Section applies to all acquisitions of the FusionPro® Software by You for, or by and for the U.S. Government (“Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, “other transaction” (“OT”), or other activity with the Government. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Software with only those rights set forth therein. By accepting delivery of the FusionPro® Software, the Government, any prime contractor, and any subcontractor agree that the FusionPro® Software qualifies as “commercial” software within the meaning of FAR Part 12, paragraph (b) of FAR Subpart 27.405, or DFARS Subpart 227.7202, as applicable, and that no other regulation, or FAR or DFARS data rights clause, applies to the delivery of this FusionPro® Software to the Government. Accordingly, the terms and conditions of this Subscription Agreement govern the Government’s (and the prime contractor and subcontractor’s) use and disclosure of the FusionPro® Software, and supersede any conflicting terms and conditions of the contract, grant, cooperative agreement, OT, or other activity pursuant to which the FusionPro® Software is delivered to the Government. If this FusionPro® Software fails to meet the Government’s needs, if this Subscription Agreement is inconsistent in any respect with Federal law, or if the above cited FAR and DFARS provisions do not govern, the Government agrees to return the FusionPro® Software, unused, to PTI.
2.13. Export Restriction. PTI maintains compliance with US Export Regulations for software products as further set forth in section 8.5.1 below. Pursuant to that section, You agree that the FusionPro® Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. End User shall, at its own expense, comply with all applicable laws, regulations, ordinances, or rules relating to its duties, obligations and performance under this Subscription Agreement. Without limiting the generality of the foregoing, End User shall comply with all applicable U.S. export laws, in its use of the FusionPro® Software and in performing its obligations under this Subscription Agreement. End User shall not export or re-export, or request PTI to export or re-export, directly or indirectly, any products, and/or technical disc or other media received from PTI, to any country, entity or person prohibited by the U.S. Government. End User acknowledges that compliance with U.S. export laws may cause delays and/or prohibit PTI from exporting the FusionPro® Software to certain countries and entities for certain uses. In no event shall PTI be liable for any such delays or prohibition. In performing its activities hereunder, End User shall also comply with, and take the necessary steps to ensure that it is in compliance with (i) the laws and regulations of other applicable countries which prohibit export or diversion of certain technical products to certain countries and individuals and any other applicable law, and (ii) the U.S. Foreign Corrupt Practices Act and Anti-Boycott Regulations.
3. Disclaimer of Warranty and Remedy. END USER EXPRESSLY ACKNOWLEDGES THAT PTI’S ABILITY TO PROVIDE THE FUSIONPRO® SOFTWARE AND THE SERVICES IS DEPENDENT ON THE AVAILABILITY OF THE TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS UTILIZED BY END USER AND THAT PTI HAS NO CONTROL OVER OR RESPONSIBILITY FOR SUCH SERVICE PROVIDERS. PTI AND ITS LICENSORS DO NOT WARRANT THE SECURITY, PRIVACY, OR ACCURACY OF ANY OTHER MEDIA OR NETW0RK USED IN CONJUNCTION WITH THE FUSIONPRO® SOFTWARE, AND END USER AGREES THAT THE USE OF ANY SUCH OTHER MEDIA OR NETWORK BY END USER IS AT END USER’S SOLE RISK. PTI AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE YOU MAY OBTAIN BY USING THE FUSIONPRO® SOFTWARE ON YOUR DEVICE OR NETWORK. THE FUSIONPRO® SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, PTI AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE STATED LIMITED WARRANTIES AND REMEDY ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS.
3.1. If You obtained the FusionPro® Software on storage media (excluding download) from PTI or a dealer, PTI warrants that the media on which the FusionPro® Software is recorded will be free from defects in workmanship and materials under normal use for a period of 30 days from the date of delivery to You. If the media is returned to PTI or the dealer from which the media was obtained within 30 days of the date of delivery to You, and if PTI determines the media to be defective and provided the media was not subject to misuse, abuse, misapplication or use in defective equipment, PTI will replace the media, upon your return to PTI of the FusionPro® Software, including all copies of any portions thereof. You acknowledge and agree that the use of the FusionPro® Software is at your sole risk.
3.2. PTI does not warrant that the operation of the FusionPro® Software in conjunction with your Device will be uninterrupted, error free, free from viruses or other harmful components or vulnerabilities, or that the functions of the FusionPro® Software will meet your specific needs or requirements. PTI’s sole and exclusive liability and your exclusive remedy for breach of warranty shall be limited to either, at PTI’s option, the replacement of the media for the FusionPro® Software or to refund your money upon returning the FusionPro® Software and FusionPro® License Key and cancelling your Subscription. Any replacement FusionPro® Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. If the above remedy fails for any reason, PTI’s entire liability for a breach of warranty shall be limited to a refund of the price paid for the FusionPro® License Key.
3.3. PTI is not liable for performance delays or for nonperformance due to causes beyond its reasonable control. This Limited Warranty is void if failure of the FusionPro® Software resulted from accident, abuse, or misapplication.
3.4. SOME STATES OR JURISDICTIONS, HOWEVER, DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, AND IN SUCH STATES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF ANY OF THE PROVISIONS SET FORTH IN THIS SECTION 3 ARE HELD UNENFORCEABLE, VOID OR INAPPLICABLE UNDER APPLICABLE STATE LAW, THEN ANY SUCH PROVISION SHALL NOT APPLY TO YOU BUT THE REST OF THE SECTION AND SUBSCRIPTION AGREEMENT SHALL REMAIN BINDING ON YOU AND PTI.
3.5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PTI OR ITS THIRD-PARTY LICENSORS BE LIABLE TO ANY PARTY, END USER OR THIRD-PARTY FOR ANY DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT OR TORT, STATUTORY OR COMMON LAW, INCLUDING ANY CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR BUSINESS PROFITS, COST OF SUBSTITURE GOODS, SERVICES OR TECHNOLOGY, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE FUSIONPRO® SOFTWARE OR ARISING OUT OF THIS SUBSCRIPTION AGREEMENT, EVEN IF PTI OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PTI BE LIABLE, UNDER ANY CLAIM OR THEORY OF LIABILITY, FOR ANY TYPE OF DAMAGES IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100).
3.6. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TRANSACTIONS, AND IN SUCH STATES, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY. IF ANY OF THE PROVISIONS SET FORTH IN THIS SECTION 4 ARE HELD UNENFORCEABLE, VOID OR INAPPLICABLE UNDER APPLICABLE STATE LAW, THEN ANY SUCH PROVISION SHALL NOT APPLY TO YOU BUT THE REST OF THE SUBSCRIPTION AGREEMENT SHALL REMAIN BINDING ON YOU AND PTI.
4. Indemnification; Disputes; Waiver of Class Actions and Class Arbitrations; Severability of Sub-Sections.
4.1. Indemnification by PTI. Subject to the limitations set forth in this section and the Insurance Coverage provisions set forth in Exhibit A hereto, PTI will defend, indemnify and hold harmless Licensee and its corporate affiliates, directors, officers, employees, successors, assigns, representatives and agents from and against any loss or liability arising from a third party claim, demand, or action, and all resulting damages, settlement amounts, penalties, costs and expense, to the extent such third party claim, demand or action alleges that the FusionPro® Software, when used by Licensee in compliance with this Agreement, (a) infringes or violates any intellectual property or other proprietary right of any third party; or (b) arises from any breach of any warranty or term of this Agreement by PTI. In no event, however, shall PTI be obligated under this section to the extent any such infringement or violation arises from (a) use of the FusionPro® Software in combination with technology or services not provided by PTI or (b) use of End User Content.
4.2. End User Indemnity. End User shall defend, indemnify and hold PTI, its officers, directors, employees, agents, subcontractors, third-party licensors and suppliers (all such persons and entities being collectively referred to as the “PTI Indemnitees”), harmless from and against any claim, action, suit, damages, liabilities, losses or expenses (including reasonable attorneys’ fees) suffered or incurred by any PTI Indemnitee arising from or relating to (i) End User’s breach of any of the provisions of this Subscription Agreement, (ii) claims of infringement or misappropriation involving End User Content by third parties or (iii) any unauthorized use of the FusionPro® Software or the FusionPro® License Key on your Device or in your business. If PTI asks You to defend any such action, suit or claim, PTI will have the right, at its own expense, to participate in the defense thereof with counsel of its choice. You will not settle any third-party claims for which PTI is entitled to indemnification without the prior written approval of PTI. The foregoing indemnification obligation shall not apply to the extent, if any, such claims directly and solely result from the gross negligence or willful misconduct of any PTI Indemnitee
4.3. Notice of Infringement Claim: Upon receipt of actual notice of any demand, claim, suit or proceeding against Licensee from a third party that contends that the FusionPro® Software System, infringes any United States or European Union patent or copyright or misappropriates any trade secret of a third party (an “Infringement Claim”), Licensee shall provide prompt written notice of such Infringement Claim to PTI and will authorize PTI to have sole control over the defense and/or settlement of such Infringement Claim. Upon PTI’s written request, Licensee will provide reasonable cooperation in the defense and/or settlement of the Infringement Claim. If Licensee complies with all of the requirements above, then PTI will: (i) defend the Infringement Claim at its expense; (ii) pay any damages and costs awarded in a judicial proceeding or binding dispute resolution proceeding against Licensee (or payable by Licensee pursuant to a settlement agreement) arising out of the Infringement Claim to the extent such arises from the Licensee’s use of the FusionPro® Software; and (iii) reimburse Licensee for reasonable costs and expenses incurred by Licensee to provide the cooperation requested by PTI pursuant to this section.
4.4. Limitation of Infringement Liability: In addition to the limitations given above, PTI will have no obligation to indemnify Licensee regarding an Infringement Claim if the Infringement Claim arose from: (i) Licensee’s use of the FusionPro® Software not in accordance with the Agreement or for purposes not intended by PTI; (ii) any use of the FusionPro® Software in combination with other product(s), equipment, software, or data not supplied by PTI, if but for such combination, the FusionPro® Software would not be subject to such Infringement Claim; or (iii) any modification of the FusionPro® Software by anyone other than PTI.
4.4.1.Conditions. The indemnifying party’s obligations under this section are contingent on the indemnified party (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim, and (c) providing the indemnifying party, at the indemnifying party’s sole expense, all reasonable assistance requested in connection with such claim. In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.
4.5. Without limiting the foregoing, End User further agrees to bring all claims arising under this Agreement or relating to the use of the FusionPro® Software (whether for components owned by PTI or its third-party licensors) solely against PTI and not against any of its third-party licensors.
4.6. Mandatory Party Discussions. Before submitting a notice of Dispute or other claim, You and PTI agree to try, for sixty (60) days, to resolve any Dispute informally. If PTI and You do not reach a written agreement to resolve the Dispute during the sixty (60) days, You or PTI may commence an action according to the terms set forth in this Agreement.
4.7. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND PTI AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE PROCEDURES OUTLINED IN THIS SECTION, NEITHER THE PARTIES, NOR ANY COURT OR ADJUDICATOR IN ALTERNATE DISPUTE RESOLUTION PROCEEDING WITH THE PARTIES, SHALL COMBINE OR CONSOLIDATE ANY CLAIMS MADE HEREUNDER WITH A CLASS OR REPRESENTATIVE PROCEEDING WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES.
4.8. Severability of this section. If any sub-provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of this Subscription Agreement remaining in full force and effect.
5. Term and Termination. The license shall remain in effect for the Subscription Term and renew on the payment and renewal terms given, unless earlier terminated by one or more of the Parties as provided in this section.
5.1. For Cause. Without prejudice to any other rights PTI has, Your license rights under Section 1 above, warranty rights under Section 3 above, and rights of indemnification under section 4 above, may be terminated by PTI upon failure by You to comply with your obligations under this Subscription Agreement, including without limitation for non-payment or violating the terms of use for the FusionPro® Software. Termination shall take effect thirty (30) days after delivery of written notice to You, if You do not cure such breach within thirty (30) days of receiving written notice in a manner acceptable to PTI. PTI may terminate this Subscription Agreement immediately without advance written notice for a material breach by the other Party of the confidentiality or licensing provisions of this Subscription Agreement, or for non-renewal by Licensee at the end of their respective Subscription Term.
5.2. For Cessation of Service. PTI shall have the right, upon written notice to End User, to terminate this Subscription Agreement without any liability to End User, if PTI decides to cease offering the FusionPro® Software for general commercial availability. Subscriptions then pending will expire at the end of their respective Subscription Term.
5.3. Effect of Termination. No refunds shall be given for FusionPro® Subscriptions terminated by licensees and/or End Users before the end of their respective Subscription Terms. Termination will also render any FusionPro® License Keys inactive to prevent reinstallation of the FusionPro® Software. Upon termination of license rights, You agree to take immediate steps to ensure that the FusionPro® Software, and all copies thereof, will be immediately deleted or removed from your computer systems and Devices. Any outstanding payment obligation of End User, and the ownership, license limitations, and procedural obligations under Sections 1.1-1.3, 1.6, 2, 3, 4, 6, and 7, inclusive, shall survive any termination or expiration of this Subscription Agreement.
6. Privacy, Information Processing. The FusionPro® Software may have the ability to connect over the Internet to transmit data to and from your Device. If You agree to download and install the FusionPro® Software, any transmissions to or from the Internet, and data collection and use, will be in accordance with PTI’s then-current Privacy Policy, and by purchasing a FusionPro® License Key and installing the FusionPro® Software You agree that such then-current Privacy Policy shall govern such activities. For example, if You install the FusionPro® Software, the FusionPro® Software may cause your Device to send information about your FusionPro® License Key such as model and serial number, country identifier, language code, operating system information, your selected payment option, e-signature and related formatting, and Acrobat documentation of your profile and order information (if required), and FusionPro® License Key usage information, to an PTI Internet site which may return promotional, payment, order or service information to your Device for display. Any processing of information provided through the FusionPro® Software, shall be according to applicable data protection laws and the PTI Privacy Policy located at FusionPro.com/privacy-policy/. To the extent permitted by applicable laws, by agreeing to the terms of this Subscription Agreement and by installing the FusionPro® Software, You consent to the processing and storage of your information in and/or outside your country of residence. If there is a specific privacy policy incorporated into the FusionPro® Software and/or displayed when You use the FusionPro® Software (for example, in the case of certain FusionPro® Software application FusionPro® Software), such specific privacy policy shall prevail over the PTI Privacy Policy stated above.
6.1. In addition to being subject to the terms and conditions hereof, any and all use of the FusionPro® Software (including, without limitation, use of the PTI web site and/or the FusionPro® Store) by End User is subject to PTI’s Privacy Policy, which is incorporated by reference herein. End User agrees to familiarize itself with such Privacy Policy, and to periodically review notifications respecting changes to the Privacy Policy and to become apprised of any applicable updates thereto.
6.2. PTI Accounts and Promotional Messages. In addition, if You install the FusionPro® Software and, through its use, register or validate your FusionPro® License Key with PTI, and/or create an account at the PTI Store, You consent and agree that PTI may merge the data collected in connection with installation of the FusionPro® Software, registration of your FusionPro® License Key and/or creation of your PTI Store account, consisting of personal information and non-personally identifiable information, and use such merged data to send You PTI promotional or service information. If You do not wish to send information about your FusionPro® Software, FusionPro® License Key or other promotional or service information, You may unsubscribe from these mailings by contacting PTI FusionPro® Support. Note, however, that product support services and Updates may no longer be available to You if You opt-out of PTI communications in this way.
7. General Provisions
7.1. Injunction. End User acknowledges that any breach of the provisions of this Subscription Agreement may cause irreparable harm and significant injury to PTI to an extent that may be extremely difficult to ascertain. Accordingly, End User agrees that PTI will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief wherever it deems appropriate to enjoin any breach or violation of this Subscription Agreement.
7.2. Publicity. Notwithstanding any other provision of this Subscription Agreement, except as required by law, neither PTI nor End User shall use the other Party’s names or trademarks, and neither Party shall make any public statements relating to the other Party, without such Party’s prior written consent, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, PTI may at its discretion issue a general press release announcing the existence of this Subscription Agreement and identify End User by name as an End User of PTI.
7.3. Governing Law; Venue. This Subscription Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA, without regard to its conflict of law principles or any other principles that would result in the application of another body of law. If any provision of this Subscription Agreement is found void or unenforceable, the Parties agree that the remainder of this Subscription Agreement shall continue to bind the Parties. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except for actions taken pursuant to Section 7.1 above, and subject to the provisions of Section 4 concerning Disputes:
7.3.1.Venue or End Users located in the United States. Any and all claims, disputes or controversies arising under or in connection with this Subscription Agreement shall be brought solely and exclusively in the federal courts located in San Diego County, California, USA, which shall constitute the sole, exclusive and final forum for any resolution of any disputes between the Parties. Both Parties hereby irrevocably consent to the jurisdiction of such courts and waive any objections thereto. Both Parties hereby irrevocably consent to service of process for all actions in such courts. Any judgments obtained by such courts may be entered and enforced against each Party in any jurisdiction wherever such Party or its assets are located.
7.3.2.Venue and Procedure for End Users located outside the United States. Any and all claims, disputes or controversies arising under or in connection with this Subscription Agreement shall be submitted to binding arbitration with a single arbitrator under the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitrator shall be mutually agreed upon by the Parties, or, if the Parties cannot agree upon an arbitrator within five (5) business days following the receipt of an arbitration demand by the non-demanding Party, then the AAA shall select the arbitrator. The arbitration shall be conducted in the English language, and all documents shall be submitted in English or with an English translation. The arbitrator shall submit a written report to the Parties, detailing the basis for any arbitration award. The arbitration shall be held in San Diego, California, USA. The Parties shall equally share the cost of the administration of the arbitration, including paying the fees of the arbitrator. Any decision rendered by the arbitrator shall be binding, final and conclusive upon the Parties, and a judgment thereon may be entered in, and enforced by, any court having jurisdiction over the Party against which an award is entered or the location of such Party’s assets, and the Parties hereby irrevocably waive any objection to the jurisdiction of such courts based on any ground, including without limitation, improper venue or forum non-conveniens. The Parties and the arbitrator shall be bound to maintain the confidentiality of this Subscription Agreement, the dispute and any award, except to the extent necessary to enforce any such award. The prevailing Party, if a Party is so designated in the arbitration award, shall not be entitled to recover from the other Party its costs and fees, including attorneys’ fees, associated with such arbitration.
7.3.3.The limitations set forth in sections 3 and 4 above shall expressly apply to all negotiated settlements, disputes, actions or claims arising under this Subscription Agreement or the Licensee’s use of FusionPro® Software.
7.4. Confidentiality. Parties may disclose to each other certain confidential information (“Confidential Information”) and each Party recognizes the value and importance of the protection of the other’s Confidential Information. All Confidential Information of one Party (the “Disclosing Party”) that is disclosed to the other Party (“Recipient”) shall remain the sole property of the Disclosing Party (or its licensors), which shall own all rights, title, interest and Intellectual Property Rights therein. Only information which is identified as confidential pursuant to the next paragraph shall be deemed Confidential Information hereunder, except that End User agrees and acknowledges that the Services and the FusionPro® Software constitute PTI’s Confidential Information.
7.4.1.A Disclosing Party may designate information as confidential by: (a) marking written information or other physical media as “Confidential” prior to disclosure; (b) indicating in the visual display of a program that the program is confidential; (c) identifying oral information as confidential at the time of disclosure to Recipient, or (d) notifying the Recipient in writing prior to disclosure that certain specifically identified types of information are considered to be confidential.
7.4.2.Except as expressly allowed in this Subscription Agreement, the Recipient agrees not to duplicate in any manner the Disclosing Party’s Confidential Information or to disclose it to any third-party or to any of Recipient’s employees not having a need to know same to implement this Subscription Agreement. The Recipient shall ensure that any such third-party or employee is bound by written confidentiality provisions at least as restrictive as those contained in this Subscription Agreement. Each Recipient agrees to keep the Disclosing Party’s Confidential Information in a safe and secure place; protect it from unauthorized use or disclosure and monitor access to it. Recipient shall use the Disclosing Party’s Confidential Information solely for the implementation of this Subscription Agreement and for no other purpose, whether for Recipient’s own benefit or the benefit of any third-party.
7.4.3.Recipient’s obligations to maintain confidentiality shall not apply to information which Recipient can prove: (i) is or becomes a part of the public domain; (ii) was in Recipient’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (iii) is entirely independently developed by Recipient without any knowledge or reference to the Confidential Information of the other Party; (iv) is lawfully disclosed hereafter to Recipient, without restriction, by a third-party who did not acquire the information from the Disclosing Party; or (v) is disclosed to the minimum required by a court of competent jurisdiction after Recipient has obtained a protective order therefore, if available.
7.5. Assignment. End User may not assign this Subscription Agreement or delegate any or all of its obligations hereunder to any third-party, whether an officer, fiduciary partner, legal proxy or other designate, trustee, court appointee, nor pursuant to any bankruptcy, insolvency or asset transfer proceeding. PTI may freely assign this Subscription Agreement, or delegate any or all of its obligations hereunder to any third-party or Affiliate, provided that any such third-party or Affiliate agrees in writing to be bound by the terms of this Subscription Agreement. Any attempted assignment or delegation in violation of this Section 7.5 shall be void and without effect.
7.6. Non-Exclusivity. Neither Party is precluded from continuing its contractual commitments or pursuing ongoing operational or marketing activities in connection with the sale or distribution of its products or services.
7.7. Independent Contractor. The relationship of the Parties hereunder is that of independent contractors. This Subscription Agreement shall not be interpreted or construed to create an association, agency, franchise, employment relationship, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon any Party.
7.8. Force Majeure. Except for the obligation to pay money, non-performance by either Party shall be excused solely to the extent that performance is rendered impossible by strike, fire, flood, earthquake, electric or other power outages, telecommunications failures, governmental act or orders or restrictions, failure of suppliers, or any other reasons where failure to perform is beyond the control and not caused by the negligence or default of the non-performing Party.
7.9. Notice. All notices and communications, required to be sent hereunder shall be sent to the address listed on the PTI Customer Agreement, in writing, and shall be (i) mailed by first class, registered or certified mail, postage paid; or (ii) delivered personally, by overnight delivery service. All notices are effective upon receipt.
Notices sent to PTI must contain, at minimum, date of execution, Party name, address, phone number, e-mail, department or individual contact name, and Order information.
Notices for PTI should be sent to:
PTI Marketing Technologies, Inc.
201 Lomas Santa Fe Avenue
Suite 300
Solana Beach, CA 92075
Attn: Contracts
7.10. Attorneys’ Fees. If PTI is subject to or brings any action at law or in equity, including an action for declaratory relief or injunctive relief brought to enforce or interpret the provisions of this Subscription Agreement, PTI shall be entitled to reasonable attorneys’ fees in addition to any other relief to which it may be entitled.
7.11. Waiver. Any waiver of compliance with any obligation, covenant, term, provision or condition of this Subscription Agreement or consent pursuant to this Subscription Agreement shall not be effective unless evidenced by an instrument in writing executed by the Party to be charged. Any waiver of compliance with any such obligation, covenant, term, provision or condition of this Subscription Agreement shall not operate as a waiver of, or estoppel with respect to, any subsequent or other non-compliance.
7.12. Audit Rights. During the term of this Subscription Agreement, and for one (1) year thereafter, End User shall maintain complete and accurate records regarding the activities it performs and transactions it enters into with third parties in connection with this Subscription Agreement. Upon reasonable advance notice to End User, PTI, or an independent auditor reasonably acceptable to End User, may inspect such records during End User’s normal business hours in order to confirm End User’s compliance with the terms of this Subscription Agreement.
7.13. Capacity and Authority to Contract. You represent that You are of the legal age of majority in your state or jurisdiction of residence and have all necessary authority to enter into this Subscription Agreement, including, if applicable, due authorization by your employer to enter into this Subscription Agreement.
7.14. Severability; Modifications. If any provision herein is found void or unenforceable by a court of competent jurisdiction, it will not affect the validity of the balance of the Subscription Agreement, which shall remain valid and enforceable according to its terms. Such court may substitute the unenforceable term with an enforceable provision which most nearly affects the Parties’ intent in entering into this Subscription Agreement as reflected in the unenforceable provision. If the foregoing is not possible under applicable law, then the unenforceable provision shall be deleted and the validity or enforceability of the remainder of this Subscription Agreement shall not be affected. This Subscription Agreement may only be modified in writing reciting the express consent of PTI.
7.15. Binding Agreement; Assignees. This Subscription Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, assigns and legal representatives.
7.16. Entire Agreement. This Subscription Agreement is the entire agreement between the parties related to the FusionPro® Software and supersedes any previous purchase order, communication, advertisement, or representation concerning the FusionPro® Software.
Last revised: August 24, 2019