Master Subscription Services Agreement for the InLoox Cloud

  The contractual terms will depend on your contract partner.

If your contract partner is InLoox GmbH based in Munich, Germany, the General Terms and Conditions for the Use of the Online Services in the InLoox Cloud of InLoox GmbH will apply.

If your contract partner is InLoox, Inc. based in San Francisco, USA, the InLoox, Inc. Master Subscription Services Agreement will apply.

General Terms and Conditions for the Use of the Online Services in the InLoox Cloud

The following General Terms and Conditions of InLoox GmbH, Walter-Gropius-Strasse 17, 80807 München, (hereinafter referred to as "InLoox") apply to the use of the online services in the InLoox Cloud (hereinafter referred to as "Online Services").

1. Scope of application

Our General Terms and Conditions (hereinafter referred to as "T&C") apply exclusively; we do not acccept contrary conditions or conditions of the customer that deviate from our Terms and Conditions unless we explicitly approve of their application in writing.

2. Subject matter of the Agreement

2.1. These T&C govern the Online Services provided by InLoox. Through the Online Services InLoox provides the customer with the technical possibility and authorisation to access services, which are operated on central servers of InLoox, via the Internet under app.inloox.com directly in the web browser and/or through apps and to use the functionalities of the Online Services in connection with this Agreement.

2.2. The use of the apps by the customer subject to a separate, independent end-user licence agreement. In connection with the installation of the apps the customer agrees to the terms and conditions of the end-user licence agreement. They can be found on www.inloox.com/end-user-license-agreement at any time and are provided to the customer upon installation.

3. Services

3.1. The kind and scope of the Online Services are conclusively described on www.inloox.com/inlooxcloud. The contractual services are based on the customer's order.

3.2. Unless otherwise agreed in the order, the Online Service is available 24/7 ("Operation Hours"). The average availability during the Operation Hours amounts to a monthly average of 99.5 % with regard to the scope of responsibility of InLoox. The regular maintenance windows of the system, which can be found at www.inloox.com/support/inlooxcloud/maintenance, are not included in the calculation of the availability ("Maintenance Times"). During the aforementioned times, the application might still be available, but may also be subject to interruptions and limitations; however, there is no claim for use. If maintenance works are required during the Operation Hours and the application is hence not available, InLoox will, if possible, inform the customer about this in due time.

3.3. During the term of Agreement, InLoox offers a support service to the customer, free of charge, including the supply of new versions, upgrades or updates. The details of the support service can be found at www.inloox.com/support/inlooxcloud.

3.4. Besides, and unless otherwise agreed in the order, InLoox is not obliged to any further services. In particular, InLoox is not obliged to provide services with regards to the installation, equipment, advice, adjustment and/or training as well as with regard to the development and supply of individual programming and/or additional programmes.

3.5. The customer can choose to nominate one of InLoox´ distribution partners as a supporter of the customer´s account within 30 days following the conclusion of contract for initial acquisition of Online Services. In the event of nomination, the distribution partner has to provide customer with free of charge first level support during the term of contract. For the details of support service we refer to the respective terms and conditions of distribution partner. Within the scope of accounting the required customer information will be transmitted to the distribution partner for specific use only. For further details we refer to our privacy policy and to the notice given with the process of nomination.

4. Right of use

4.1. During the term of this Agreement, InLoox grants, against payment, to the customer the non-exclusive, non-assignable, non-sublicensable right to access the Online Services on InLoox' server via the Internet and to use the functionalities linked to the Online Services through a web browser or a desktop software in accordance with this Agreement. The customer does not receive any additional rights, in particular with reference to the software. The software is not handed over to the customer.

4.2. The customer is not entitled to use the Online Services beyond the use permitted in accordance with this Agreement or to make them available to third parties - no matter in which way and whether free of charge or against payment. In particular, the customer is not entitled to reproduce or sell the Online Service wholly or in parts or to permit the use for a certain period; the customer is in particular not entitled to rent or lend it.

4.3. The customer may only use the Online Services for his own business activities through own staff and/or authorised third parties who use the Online Services on behalf of him ("Authorised Users"). The customer ensures that the Authorised Users use the Online Services only within the scope of and pursuant to these T&Cs.

4.4. For each case, in which the customer culpably enables third parties to use the Online Services, the customer has to pay a penalty in the amount of the sixfold regular remuneration; any such payment shall become due immediately. InLoox reserves the right to assert further damages. In any such case penalty will be credited against the claim for damages.

4.5. To the extent InLoox provides the customer with new versions, updates or upgrades of the Online Services during the term of this Agreement, the aforementioned right of use applies accordingly.

4.6. In the case of an unauthorised permit of use, the customer shall immediately and upon request provide InLoox with any information for the assertion of claims against the user, in particular his/her name and address.

4.7. If the contractual use of the Online Services is affected by IP rights of third parties without InLoox' fault, InLoox is entitled to refuse rendering the services affected by this. InLoox will inform the customer about this immediately and will grant him/her access to his/her data in an appropriate way. In any such case the customer is not obliged for payment. Any other claims or rights of the customer shall remain unaffected.

5. Test version, beta version

5.1. If the customer has signed up for a test version or beta version of the Online Services, he can use it free of charge for a period of 30 days in accordance with the provisions of this Agreement. For this period InLoox does not guarantee or warrant and is not liable for damages incurred by the use of the test version, except for wilful acts and gross negligence.

5.2. Any customer data is deleted by InLoox after the 30-day test period, unless the customer decides to enter into an agreement on the use of the Online Services against payment before the expiry of said 30-day test period.

5.3. Customer data, which was created and/or inserted via beta version, cannot be transferred to a production version; they will be deleted by InLoox after the expiry of the beta period.

6. Obligations of the customer / indemnification

6.1. The customer will protect the authorisations for use and access as well as the identification and authentication protections assigned to him and/or the users from the access by third parties and the customer will not forward this information to unauthorised users. As soon as the customer gets aware that the authorisations for use and access have been obtained by a third party in an illegal way or that they might be misused, the customer is obliged to immediately inform InLoox for the purposes of mitigating the damage.

6.2. The customer will not use the Online Services in any way constituting a misuse, or have them used in any such way; in particular, the customer will not transmit any illegal contents. Moreover, the customer will also refrain from any attempt to illegally retrieve information or data itself or via non-authorised third parties or to intervene into programmes operated by InLoox, or arrange for such intervention, or to intrude into data networks of InLoox in an illegal way.

6.3. The customer will immediately report any errors of the contractual services to InLoox in writing, stating how and under which circumstances the error and/or the defect occurs and the customer will actively support InLoox with the troubleshooting.

6.4. The customer will secure the data transmitted to InLoox on a regular basis and appropriately to possible risks and create own backups in order to be able to restore the data and information in the case of loss.

6.5. When using the Online Services as well as the contractual services, the customer will comply with all applicable laws and other legal provisions. In particular, the customer is not entitled to upload any data or contents infringing legal provisions or other IP rights or copyrights or any other rights of third parties. The customer alone is responsible for the data and contents supplied by him. InLoox neither reviews the contents as to their lawfulness nor as to their correctness.

6.6. The customer indemnifies InLoox from any claims of third parties which are based on an illegal use of the Online Services by him or occur with his approval or which, in particular, result from data protection law disputes, copyright law disputes or any other legal disputes connected to the use of the Online Services. If the customer realises, or has to realise, that any such infringement is imminent, he is obliged to immediately inform InLoox.

7. Use contrary to the Agreement / blocking of access

7.1. If there are specific aspects to the effect that the customer infringes and/or has infringed any material obligation set forth in this Agreement, any statutory provision or any right of third parties or if InLoox has any other justified interest, InLoox is entitled:

• to delete, to deactivate or to change the respective data;
• to take any other appropriate measures, such as issuing a warning to the customer,
• to immediately block the customer's access to the Online Services.

7.2. When deciding on a measure to be taken, InLoox will take into consideration the justified interests of the customer, in particular if the infringement was not the customer's fault. In any case, InLoox will inform the customer by email prior to blocking the account.

7.3. The access will only be restored when the infringement of the respective material obligation has been permanently removed and/or the risk of repetition is excluded. In very serious or repeated culpable cases of infringement, InLoox is entitled to block the customer's access to the Online Services permanently.

8. Remuneration / payment terms

8.1. The remuneration agreed upon for the contractual services are based on the customer's order. The invoicing period (1 or 12 months) is based on the customer's order.

8.2. All remunerations and prices are exclusive of respective valid statutory VAT. VAT will be invoiced separately in addition to the remuneration.

8.3. The remuneration contractually agreed on is due in advance of an invoicing period by way of credit card or by direct debit. Irrespective of the payment method chosen, the customer has to keep the data provided for invoicing updated at any time and has to immediately inform InLoox about any changes hereof.

8.4. If the customer provides InLoox with a respective direct debit authorisation for payment, the amount due for the invoicing period is debited from the account referred to in the direct debit authorisation 7 days after receipt of the invoice. The customer has to make sure that there is sufficient coverage on his account at any time. The customer has to refund any costs arising from the fact that a direct debit is not redeemed and if the customer is responsible for this. The customer is free to prove that the costs have not arisen or have not arisen in the asserted amount.

8.5. The customer may only set off costs against receivables that were determined in a legally final and binding way or that are uncontested or he may assert a right of retention.

9. Delay

9.1. In the case of a delay in payment, InLoox is entitled to invoice default interest in the amount of 8 percentage points above‎ the respectively valid basic interest rate vis-à-vis companies and in the amount of 5 percentage points above the respectively valid basic interest rate vis-à-vis consumers. The right to assert further damage shall remain reserved.

9.2. When the consumer is in delay of payment regarding a considerable amount, InLoox is entitled to block the access to the Online Services. In any such cases the customer shall remain obliged to pay the remuneration.

9.3. If the customer is in delay of payment with respect to

a) the remuneration and/or a considerable part of the remuneration for two consecutive invoicing periods or

b) the fees in the amount which corresponds to the amount of fees for two invoicing periods in a period which extends to more than two invoicing periods,

InLoox is entitled to terminate the Agreement without notice and to claim liquidated damages in the amount of a quarter of the remaining monthly prices until the end of the regular term of the Agreement; this amount is due immediately as one sum.

9.4. The amount of damage has to be increased or decreased if InLoox provides evidence for a higher damage or the customer provides evidence for a lower damage.

9.5. InLoox reserves the right to assert further claims for delay of payment.

9.6. If InLoox is in delay with providing operational Online Services, liability is determined in accordance with clause 10. The customer is only entitled to withdraw from the Agreement if InLoox does not comply with a reasonable grace period set by the customer.

10. Liability

10.1. In the case of wilful act, InLoox is unlimitedly liable for any and all damage caused by it and its legal representatives or vicarious agents.

10.2. In the case of slight negligence, InLoox is only liable for any damage caused by it and its legal representatives or vicarious agents as a result of the infringement of a material contractual obligation. Contractual obligations are considered material if required to duly execute the Agreement and on which InLoox regularly relies on and may rely on. In this case, liability shall be limited to the compensation of the foreseeable, typically occurring damage.

10.3. InLoox' liability for indirect losses and lost profits is excluded.

10.4. InLoox' strict liability for damages (Sec. 536a para. 1 German Civil Code(Bürgerliches Gesetzbuch, BGB)) as a result of defects existing at the time of the conclusion of the Agreement is excluded.

10.5. The liability pursuant to the product liability act shall remain unaffected.

10.6. Insofar as InLoox's liability is excluded or limited, such exclusion or limitation applies mutatis mutandis to the personal liability of its employees, members of staff, representatives and vicarious agents of InLoox.

11. Data protection and data security

11.1. The data uploaded by the customer will be saved on servers in Germany in data centers in Frankfurt am Main and Magdeburg. The basis for data processing is the agreement on data processing attached to these conditions, which is expressly agreed between the parties by acceptance of these conditions.

11.2. InLoox does not collect, process or use any personal data on behalf of the customer in connection with rendering the services pursuant to this Agreement except as the data stored by customer as defined in clause 11.1 above; InLoox does not have access to any such data either.

11.3. If the customer collects, processes or uses personal data, he is responsible for being entitled to do so pursuant to the applicable provisions, in particular pursuant to data protection provisions; in the case of an infringement, he indemnifies InLoox from claims of third parties. If contrary to clause 11.2. the customer uploads personal data onto InLoox' server without the consent of InLoox, the customer indemnifies InLoox from any claims of third parties.

11.4. As part of the "Customer Experience Improvement Program" (CEIP), InLoox will gather anonymized usage statistics and error reports. Customer can turn off this feature at any time. More information can be found at www.inloox.com/ceip.

12. Force majeure

12.1. InLoox is released from the obligation to render services arising from this Agreement if and insofar the non-performance of services can be attributed to the occurrence of conditions of force majeure after the conclusion of the Agreement.

12.2. Circumstances of force majeure include for example war, strike, riot, expropriation, fundamental legal changes, storm, floods and other natural disasters as well as any other circumstances for which InLoox is not responsible, in particular water ingress, blackouts and cut-offs or destruction of data cables.

12.3. Each contractual party has to immediately inform the respective other contractual party in writing about the occurrence of a case of force majeure.

13. Secrecy

The contractual parties undertake to treat as confidential any business and trade secrets which they - including their vicarious agents - have obtained on the occasion of entering into the Agreement or fulfilling the Agreement. These obligations do not apply to information, knowledge and experiences which

(a) are publicly known as can be verified without infringing this secrecy obligation,

(b) the parties already verifiably knew prior to receipt of this information, knowledge and experience

(c) were received by a third party which is not subject to a secrecy obligation or

(d) were verifiably gained through independent work.

14. Term of Agreement, termination

14.1. The Agreement is entered into for the contractual term as agreed upon in the order (minimum term). The Agreement is extended by the same period of time as the minimum term (extension term), unless one of the contractual parties terminates the Agreement prior to the end of the minimum term or the respective extension term.

14.2. The right of termination for good cause shall remain unaffected. In addition to clause 8.2., InLoox is, in particular, entitled to extraordinarily terminate the Agreement if the customer

14.2.1. infringes material provisions of this Agreement or does not fulfil main duties arising out of the Agreement and does not remedy this breach of duty despite a written warning within a reasonable deadline;

14.2.2. fails to make payments due under this Agreement and the default is not temporary;

or

14.2.3. ceases its business operations on a more than temporary basis, whether based on its own decision or by court order.

14.3. The customer's right to extraordinarily terminate the Agreement without notice is excluded if the contractual use of the Online Services, whether wholly or in parts, is not granted in time or is blocked again (Sec. 543 para. 2 item 1 BGB).

14.4. If the customer extraordinarily terminates the Agreement, InLoox refunds to the customer the remuneration already paid in advance.

14.5. If InLoox extraordinarily terminates the Agreement for a reason for which the customer is responsible, the customer has to pay the outstanding remuneration until the end of the minimum term.

14.6. All notices of extraordinary termination pursuant to this Agreement have to be made in writing. The point in time of receipt of the termination letter is decisive for adhering to the notice periods.

15. Obligations upon and after termination of the Agreement

15.1. During the term of the Agreement and within 30 days after the termination of the Agreement the customer's data saved on InLoox' servers are available for download by the customer, provided that the customer has not finally deleted the respective data from the server.

15.2. For these purposes, InLoox provides the customer with a download application within the Online Services. Customer data can be downloaded as a file in the SQL format; documents and enclosures can be downloaded in their original format.

15.3. After expiry of 30 days after termination of the Agreement, the customer does not have any claim for transmission of the data saved by him. InLoox will separately point this out to the customer after receipt of the termination.

16. Final provisions

16.1. In the case of deviations and/or contradictions of the provisions of this Agreement and the provisions of the exhibits, the provisions of this Agreement shall prevail.

16.2. The customer can only transfer the rights and obligations out of this Agreement to third parties upon written consent of InLoox. However, InLoox is entitled to transfer the rights and obligations out of this Agreement to an allied company within the meaning of Secs. 15 et seqq. German Stock Corporation Act (Aktiengesetz). InLoox will inform the customer about this in writing; in any such case, the customer is entitled to extraordinarily terminate the Agreement.

16.3. Amendments or supplements to the contract and its appendices must be made in text form, unless a special written form is agreed in this agreement.

16.4. This Agreement shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG) and international law (in particular German laws of conflict).

16.5. As far as the customer is not a consumer in the sense of § 13 BGB, the place of jurisdiction for all disputes arising from this contract including its appendices is Munich. The same applies if the customer has no general place of jurisdiction in Germany or his place of residence or usual abode is not known at the time the action is filed.

16.6. If individual clauses of the present Agreement are invalid wholly or in part, any possibly invalid provision shall be reinterpreted, supplemented or replaced in a way that the economic purpose that was originally intended with the invalid provision is achieved. The same shall apply if this Agreement contains any gaps.

16.7. The contract language shall be German. These General Terms and Conditions are available in German and in English. The German version only is decisive and binding for the interpretation of individual provisions and/or if there are any contradictions between the language versions.

Date: 2022-10-31

InLoox, Inc. Master Subscription Services Agreement

IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE. 

This Master Subscription Services Agreement (“Agreement”) is between InLoox Inc., a Delaware corporation (InLoox), and the entity or individual agreeing to these terms (Customer).

1) ONLINE SUBSCRIPTION SERVICES. This Agreement provides Customer access to a proprietary web-based subscription service, as specified on the order. Details of the available InLoox services are located at: www.inloox.com/inlooxnow

InLoox will provide this functionality through inlooxnow.com within a hosted server environment under the terms below (Service) and through InLoox software that acts as the interface to the Service (this software will be contracted for under an End User License Agreement provided as part of the installation of that software). This Agreement contemplates one or more orders for the Services, which orders are governed by the terms of this Agreement and will describe the Services ordered in more detail (these orders may be provided electronically online or via written order forms). 

• Customer may allow its employees and contractors to access the Services in compliance with the terms of this Agreement, which access must be for the sole benefit of Customer.
• Customer is responsible for the compliance with this Agreement by its employees and contractors.

2) USE OF SERVICES.

a) Trial Period and Beta Program. If Customer has registered for a trial or beta use of the Services, Customer may access the Services for a 30-day time period free of charge. The Service is provided AS IS, with no warranty during this time period. For trial accounts, the Customer data will be deleted after the trial period (unless Customer converts its account to the paid Service). For beta accounts, the account and Customer data will be deleted after the beta period.

b) Customer support. The Customer can choose to nominate one of InLoox’s distribution partners as a supporter of the Customer´s account within 30 days following the conclusion of this Agreement for initial purchase of Online Services (hereinafter referred to as “Initial Purchase”). In the event of nomination of one of InLoox’s distribution partners, the distribution partner has to provide Customer with free of charge first level support during the term of this Agreement. For the details of support service please refer to distribution partner’s terms and conditions. Customer information will be provided to the distribution partner only with regard to accounting purposes. For further details with respect to InLoox’s privacy policy, please refer to our privacy policy and to the notice given with the process of nomination.

c) InLoox Responsibilities. InLoox must (i) use commercially reasonable efforts to make the Services available, except for scheduled outages, unavailability caused by force majeure or Customer technology issues, and (ii) provide customer support for the Services as further detailed at: www.inloox.com/support

d) Customer Responsibilities. Customer (i) is solely responsible for Customer Data, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify InLoox promptly of any such unauthorized access, and (iii) may use the Services only in accordance with its user guide and applicable law.

Customer may not (i) sell, resell, rent or lease the Services, (ii) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Services, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks.

e) Customer Experience Improvement Program (CEIP). The InLoox software will automatically send anonymized usage statistics and error reports to InLoox. Customer can turn off this feature at any time. More information is located at: www.inloox.com/ceip

3) PAYMENT TERMS. Customer must pay all fees (US$) with a credit card. If the credit card is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice. Customer is responsible for sales, use, VAT and other similar taxes. All fees may be changed on 30 days advance notice, unless otherwise described below. All amounts that are not paid within 30 days of receipt of an invoice will accrue late charges of the lesser of 1% per month, or the maximum rate permitted by law, from the original due date until the date InLoox receives payment.

a) Credit Card. Customer agrees to provide InLoox with updated credit card, and authorizes InLoox to charge Customer’s credit card for amounts owed InLoox. If 

• Customer’s credit card information changes,
• Customer’s credit card information expires, or
• Customer is notified by InLoox of an unsuccessful attempt by InLoox to charge Customer’s credit card, 

then Customer must update its account with valid credit card information as soon as possible, but in no event later than 5 days. If the credit card number is revoked, disputed or not valid for any reason (including without limitation expiration of a credit card), InLoox may suspend or terminate Customer’s use of the Services upon notice to Customer via email (using the then current account email address in the Service). 

4) DISCLAIMER. INLOOX DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE MAY NOT BE ERROR FREE OR PERFORM WITHOUT DELAY.

5) MUTUAL CONFIDENTIALITY.

a) Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). InLoox’s Confidential Information includes without limitation the Services.

b) Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c) Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law, but will attempt to provide Discloser with advance notice to seek a protective order.

6) PROPRIETARY RIGHTS

a) Reservation of Rights by InLoox. The software, workflow processes, user interface, designs, know-how and other technologies provided by InLoox as part of the Services are the proprietary property of InLoox and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with InLoox. InLoox reserves all rights unless expressly granted in this Agreement.

b) Customer Restrictions. Customer may not: 

1. Use the Services or the Licensed Documentation (defined below) beyond its internal operations;
2. Reverse engineer the Services or the Licensed Documentation;
3. Remove or modify any proprietary marking or restrictive legends in the Service and Licensed Documentation; or
4. Access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes.

c) Customer Data. All data uploaded by Customer remains the sole property of Customer, as between InLoox and Customer (Customer Data), subject to the other terms of this Agreement. Customer grants InLoox a non-exclusive term license to use the Customer Data for purposes of InLoox performing under this Agreement. During the term of this Agreement, Customer may download its Customer Data from the Services, and select the location where its Customer Data will be stored. 

d) Licensed Documentation. The Services user guide, sample data, marketing materials, training material and other material provided through the Services or by InLoox, are licensed to Customer as follows: InLoox grants Customer a non-exclusive, license for the duration of the Services to such material for Customer’s internal use solely with the Services, with the right to make additional copies of the material for such duration and purpose (Licensed Documentation). 

7) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

a) Exclusion of Certain Damages. INLOOX IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOST PROFIT, LOSS OF DATA OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES).

b) Limitation of Liability. INLOOX’S LIABILITY FOR ALL DAMAGES RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT

8) TERM, TERMINATION, RENEWAL, SUSPENSION OF SERVICE AND RETURN OF DATA.

a) Term. This Agreement continues until all orders are terminated (Term).

b) Automatic Renewal. UNLESS CANCELLED BY CUSTOMER, THE AGREEMENT WILL BE AUTOMATICALLY RENEWED AT THE END OF THE SUBSCRIPTION PERIOD. SERVICES WILL AUTOMATICALLY RENEW FOR A SUCCESSIVE SUBSCRIPTION PERIOD, WITHOUT PRIOR NOTICE, UNLESS AND UNTIL CUSTOMER CANCELS THE AGREEMENT, OR INLOOX TERMINATES IT. CUSTOMER MUST CANCEL THE AGREEMENT BEFORE IT RENEWS IN ORDER TO AVOID BEING BILLED FOR THE NEXT PERIOD AT THE THEN-CURRENT FEES.

c) Mutual Termination for Material Breach. If either party is in breach of any material term of this Agreement, the other party may terminate this Agreement by providing the other party with a written 30-day notice. Upon receipt of the 30-day notice by either party, the recipient may have to opportunity to cure the breach. In the event that the breach is not cured within the 30-day notice period, this Agreement shall be considered terminated. 

1. Actions upon Termination.
   1. Upon any termination as provided in 8(c) above by Customer, InLoox must refund any prepaid and unused fees covering the remainder of the Term.
   2. Upon any termination as provided in 8(c) above by InLoox, Customer must pay any unpaid fees, and destroy all InLoox property in customer’s possession. The Services will also be terminated. Customer upon request will confirm that it has complied with these requirements.

d) Return of Customer Data. 

• Before termination of this Agreement and within 30-days after termination, Customer may download its Customer Data. InLoox will provide Customer a data download feature (to the extent Customer has not already deleted such data from the Services). The Customer Data will only be provided in the following format: database content will be provided as a SQL file, and documents and attachments will be provided in their native format (this excludes the server configuration and file permissions which might have been set on documents and attachments).
• After such 30-day period, InLoox has no obligation to maintain the Customer Data.

e) Suspension of Service for Violations of Law. InLoox may immediately suspend the Services and remove applicable Customer Data, if it in good faith believes that, as part of using the Services, Customer may be in violation of any applicable federal or state laws. InLoox may try to contact Customer in advance, but it is not required to do so.

9) INDEMNITY.

a) Defense of Third Party Infringement Claims by InLoox. InLoox will defend or settle any third party claims against Customer alleging that the Service (other than related to the Customer Data) violates a copyright, patent, trademark or other intellectual property right, if Customer:

• Promptly notifies InLoox of the claim in writing;
• Cooperates with InLoox in the defense; and
• Allows InLoox to solely control the defense or settlement of the claim. 

InLoox will pay infringement claim defense costs, and InLoox negotiated settlement amounts, and court awarded damages.

Remedies. If such a claim appears likely, then InLoox may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If InLoox determines that none of these are reasonable available, then InLoox may terminate the Service and refund any prepaid and unused fees.

Exclusions. InLoox has no obligation for any claim arising from:

• InLoox’s compliance with Customer’s designs, specification, instructions, or technical information;
• A combination of the Service with other technology where the infringement would not occur but for the combination; or

• Technology not provided by InLoox.

  This section contains Customer’s exclusive remedies and InLoox’s sole liability for intellectual property infringement claims.

b) By Customer. Customer must indemnify, defend, and hold harmless InLoox against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:

• Customer’s breach of any representation, warranty, obligation, covenant or agreement in this Agreement, or
•  any unauthorized use, access or distribution of the Services.

10) GOVERNING LAW, ARBITRATION AND LOCATION OF DISPUTES. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTE BETWEEN CUSTOMER AND INLOOX ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE DETERMINED BY BINDING ARBITRATION IN SAN FRANCISCO, CA (IN ENGLISH) UNDER THE THEN CURRENT COMMERCIAL OR INTERNATIONAL RULES (AS APPLICABLE) OF THE AMERICAN ARBITRATION ASSOCIATION. NOTHING IN THIS AGREEMENT PREVENTS EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF IN A COURT OF COMPETENT JURISDICTION. THE PREVAILING PARTY IN ANY ARBITRATION OR LITIGATION IS ENTITLED TO RECOVER ITS ATTORNEYS’ FEES AND COSTS FROM THE OTHER PARTY.

11) MISCELLANEOUS TERMS.

a) Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

b) Entire Agreement and Changes. This Agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it.

c) No Assignment. Neither party may assign or transfer this Agreement or an order to a third party, except that this Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.

d) Independent Contractors. The parties are independent contractors with respect to each other.

e) Enforceability. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.

f) No Additional Terms. InLoox rejects additional or conflicting terms of any Customer form-purchasing document.

g) Order of Precedence. If there is an inconsistency between this Agreement and an order, the order prevails.

h) Survival of Terms and Force Majeure. Any terms that by their nature survive termination or expiration of this Agreement, will survive. Neither party is liable for force majeure events.

i) CISG Not Apply. The Convention on Contracts for the International Sale of Goods does not apply.

j) Customer Name. InLoox may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of InLoox, which use must be in accordance with Customer’s trademark guidelines and policies.

Date: 2017-02-14