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END USER LICENSE AGREEMENT

ACCELLION SOLUTIONS LICENSE AGREEMENT THIS ACCELLION SOLUTIONS LICENSE AGREEMENT
(THE “AGREEMENT”) APPLIES TO THE USE OF ANY SOFTWARE PROVIDED DIRECTLY OR
INDIRECTLY BY ACCELLION. BY EITHER FOLLOWING THE ONLINE ACCEPTANCE PROCESS
PROVIDED BY ACCELLION OR INSTALLING, ACCESSING, OR USING ALL OR ANY PORTION OF
THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. A CONTRACT IS
THEN FORMED BETWEEN ACCELLION AND EITHER YOU PERSONALLY, IF YOU ARE USING THE
SOFTWARE FOR YOURSELF, OR THE COMPANY OR OTHER LEGAL ENTITY, WHICH YOU REPRESENT
(“CUSTOMER”). IF CUSTOMER IS LOCATED IN CANADA OR THE UNITED STATES, “ACCELLION”
MEANS ACCELLION, INC., A DELAWARE CORPORATION WITH A PLACE OF BUSINESS AT 1510
FASHION ISLAND BOULEVARD, SUITE 100, SAN MATEO, CA, 94404; OTHERWISE,
“ACCELLION” MEANS ACCELLION PTE LTD, AN ENTITY ORGANIZED UNDER THE LAWS OF
SINGAPORE WITH A PRINCIPAL PLACE OF BUSINESS AT BLK 750C CHAI CHEE RD #04-09 to
12, VIVA BUSINESS PARK, SINGAPORE 469003. 1. Accellion Software; Ordering. 1.1
Accellion Software. Accellion licenses its software products on a subscription
basis. Software is made available as a software-only (or “virtual”) solution, as
a hosted solution, or on a physical appliance. Customer’s rights to use
Accellion software apply only to the Accellion software licensed under an Order
(defined below). 1.2 Order Process. Orders for Accellion software and services
may be made online, through written Orders placed directly with Accellion, or
through an Accellion authorized reseller (“Channel Partner”). An order becomes
part of this Agreement upon acceptance by Accellion or a Channel Partner (the
accepted order referred to as the “Order”), provided that for Orders placed
through Channel Partners, only the line items for Accellion’s published products
and services listed in the Order and which are provided to and paid for by
Customer constitute the “Order.” The terms of Customer’s form of purchase order
or similar documents shall not apply to the relationship of Parties. In the
event of any conflict between the terms of any Order and the terms of this
Agreement, the terms of this Agreement shall govern. 1.3 Delivery. For
downloadable versions of the Accellion software, Customer may download the
software from a link provided by Accellion. For hosted versions of the Accellion
Solution, access shall be provided through a password-protected web interface.
Delivery occurs when such link or access is made available to Customer. 2.
Applicable Terms. 2.1 Web Orders. If Customer purchases a license online (a “Web
Order”), then terms of this Agreement include the Web Order Terms set forth in
Section 13. In the event of any conflict between Section 13 and other Sections
of this Agreement, Section 13 shall apply. 2.2 Trial Versions. If Customer has
ordered or downloaded a trial version of Accellion software, then the provisions
of Sections 4.2, 5, 6.3, 8.1, 8.3, 9.2, 9.3, 9.4 and 12.2 shall not apply during
the trial but shall be effective upon the date Customer upgrades to a paid
subscription for such Accellion software. 2.3 Accounts for Web Orders. This
Section 2.3 applies to Orders placed online with Accellion. Customer represents
that the account information provided upon registration (“Account Info”) is
accurate, current and complete and that it will maintain Account Info current at
all times. Customer is solely liable for use of and access to the account and
Accellion shall not have any liability to Customer for unauthorized access or
use of the account. Account Info is protected by Accellion’s Privacy Policy, as
modified from time to time, located at http://www.accellion.com/privacy-policy,
the most current terms of which are incorporated herein by reference. If
Customer sets up an account using an email address with an email domain of an
Accellion Solutions licensee (e.g. where Customer’s employer is already an
Accellion Solutions licensee), then Customer consents to Accellion’s disclosure
of Customer’s usage information to such party. 2.4 Inapplicability of Purchase
Orders. The terms and conditions of this Agreement shall govern the relationship
of the Parties regarding Accellion software and services utilized by Customer
and Customer’s form of purchase order and similar documents shall have no force
or effect. 3. Definitions. Unless otherwise specified, capitalized terms used in
this Agreement will have the meanings attributed to them in this Section 3.
“Accellion Solution” means the object code versions of the Accellion software
identified on an Order and includes related Server Software, Client Software,
Updates, and Documentation, but does not include Open Source Software, which is
provided pursuant to Section 4.5. “Affiliate” means an entity which directly or
indirectly controls, is controlled by or is under common control with a party to
this Agreement. “Client Software” means the object code versions of the desktop
client software for the licensed Accellion Solution. “Designated User” means the
number of users for whom Customer has purchased rights to use the Accellion
Solution, as set forth on the applicable Order, plus any additional True-Up
Users added pursuant to Section 6.3 below. Designated Users may consist of: (i)
employees and independent contractors of Customer and its Affiliates, and (ii)
individual representatives of vendors and/or service providers of Customer and
its Affiliates. “Documentation” means Accellion’s standard written materials and
specifications for the Accellion Solution licensed by Customer, as updated or
revised by Accellion from time to time. “Effective Date” means (i) for Orders
submitted to Accellion, the date that Accellion accepts the Order; or (ii) for
orders submitted to a Channel Partner on a form other than an Accellion Order
form, the date Accellion makes the software available to Customer for download
or, for software provided on a physical appliance, the date of shipment.
“Hardware” means computer equipment, if any, purchased from Accellion by
Customer. “Hosted Services” means the remote access and use of a hosted version
of the Accellion Solution as hosted by Accellion, excluding Web Orders. “License
Term” means the subscription period for use of the Accellion Solution, as
identified on the applicable Order. Each renewal is a separate License Term. For
trial versions, the License Term period shall be for the period of forty-five
(45) days unless otherwise indicated by Accellion. “Maintenance Support
Services” means the support services provided by Accellion to Customer in
accordance with the applicable Maintenance Support Policy as described in
Section 5. “Release” means a version of the Accellion Solution for which
Accellion charges a separate fee. “Server Software” means the object code server
software versions of the Accellion Solution, as identified on the applicable
Order. “Update” means additions, upgrades, or modifications to the Accellion
Solution. Updates do not include Releases. 4. License Terms. 4.1 License Grant.
Subject to the terms and conditions of this Agreement, Accellion hereby grants
to Customer during the License Term, a non-exclusive, non-transferable and
non-sublicenseable license to: (a) install and use the Client Software on
supported environments for up to the number of Designated Users; and (b) use,
access, and for Accellion Solutions not hosted by Accellion, copy the Server
Software on supported environments for up to the number of copies identified on
the Order for Customer’s internal business purposes. 4.2 Hosting. (a) By
Accellion. If Hosted Services are ordered by Customer, they are provided
pursuant to the terms of Accellion’s Hosting SLA located at
http://www.accellion.com/terms/hostingsla, which is incorporated herein by
reference. (b) By Customer’s Outsourced Provider. For virtual versions of the
Accellion Solution and versions provided with Hardware, if Customer elects to
engage its own outsourcing provider (each a “Outsourced Provider”), then: (i)
Customer may sublicense to Outsourced Provider the right to install and operate
the Accellion Solution in the form as provided by Accellion, solely for the
benefit of Customer and subject to the terms and conditions of this Agreement;
(ii) Customer shall be liable for any acts or omissions of Outsourced Provider
in violation of this Agreement; and (iii) Customer shall identify in writing to
Accellion a single point of contact at Outsourced Provider for any maintenance
and technical support matters. In order to provide warranty and Maintenance
Support Services, Accellion requires remote access to the Accellion Solution and
may require on-site access. Failure to provide Accellion with such reasonable
access shall relieve Accellion of its warranty and Maintenance Support Services
obligations with respect to such Accellion Solution. 4.3 License Restrictions.
Customer shall not copy the Accellion Solution except to make a reasonable
number of copies for the purposes of security back-up, relocation or disaster
recovery; provided, however, that Customer may make and use the number of copies
of Client Software that it deems appropriate unless the number of copies of
Client Software is restricted as set forth on the applicable Order. The
Accellion Solution may not be modified, disclosed, reverse-engineered,
disassembled, or decompiled except and to the extent allowed by applicable law.
Customer shall not transfer, sell, license, sublicense, outsource, rent or lease
the Accellion Solution or use it for service bureau or other third-party use.
All rights not expressly granted hereunder are reserved. Customer is solely
responsible and liable for the use of and access to the Accellion Solution by
Designated Users and for all files and data transmitted, shared, or stored using
the Accellion Solution. Customer acknowledges and agrees that the licenses
granted herein are neither contingent upon the delivery of any future
functionality or features nor dependent upon any oral or written public comments
made by Accellion with respect to future functionality or features. 4.4
Ownership. All right, title, and interest, including without limitation all
intellectual property rights, in and to the Accellion Solution, including any
and all modifications, enhancements, derivative works, Updates and Releases, are
the sole and exclusive property of Accellion and its licensors. Customer shall
not remove, and shall reproduce on any permitted copies, all proprietary,
copyright, trademark and trade secret notices contained in or placed upon the
Accellion Solution. Customer will take reasonable precautions (including the
precautions used for Customer's own confidential information) to prevent the
unauthorized use or disclosure of the Accellion Solution, the Documentation, or
the results of any performance or benchmark tests of the Accellion Solution.
Customer will not allow the Software or any performance or benchmark test
results to be made available to any third party unless Accellion approves that
disclosure. 4.5 Open Source Software. Customer agrees that any software or
materials which may be made available by Accellion, or otherwise obtained or
used by Customer, subject to an open source license or other open source terms
(“Open Source Software”) shall be and shall remain subject to the terms and
conditions of the original providers and are not part of the Accellion Solution.
Open Source Software terms are made available either with the Accellion Solution
or through the administration interface of the applicable Accellion Solution. 5.
Maintenance Support Services. Except for Web Orders, the Accellion Solution is
provided with either Standard maintenance and support or Enterprise maintenance
and support, as provided on the applicable Order, and is provided for the
License Term. Accellion’s Standard Maintenance Support Policy in effect as of
the Effective Date of the Agreement is set forth at
http://www.accellion.com/supportguidelines/standard.html and Accellion’s
Enterprise Support Policy is set forth at
http://www.accellion.com/supportguidelines/enterprise.html. Maintenance Support
Services shall automatically renew in conjunction with license renewals. As part
of Maintenance Support Services, Accellion will make available to Customer all
Updates to the supported Accellion Solution that Accellion makes generally
available to its other customers. Customer shall provide Accellion access to the
Accellion Solution to install such Updates if required by Accellion. Customer
agrees to deploy any critical Updates, as identified by Accellion, within five
(5) days following receipt. Accellion will not be liable to Customer for
damages, liabilities, fines, costs, and/or expenses, including costs of
litigation and reasonable attorneys’ fees, which Customer may incur, based upon
or arising out of Customer’s failure to implement any critical Updates. 6.
Payment; True-Up Users. 6.1 Payment. Customer shall pay the fees specified in
the Order. Orders are firm commitments of Customer and are not cancelable by
Customer. For orders made directly with Accellion, (i) Customer shall pay
invoices in U.S. dollars within thirty (30) days of the invoice date and without
offset or deduction, and (ii) all payment terms are subject to approval of
Customer’s creditworthiness, which approval may be withdrawn at any time; and
(iii) payments are non-refundable except as otherwise explicitly stated in this
Agreement and Accellion may apply a late charge on overdue invoices at a rate of
one and one-half (1.5%) per month or the maximum allowed by law, whichever is
less. FOR WEB ORDERS AND FOR UPGRADES FROM TRIAL VERSIONS TO PAID VERSIONS,
CUSTOMER CONSENTS TO ALLOW ACCELLION TO CHARGE THE CUSTOMER’S CREDIT CARD,
EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR THE
INITIAL LICENSE TERM AND ANY RENEWALS, PLUS APPLICABLE TAXES. 6.2 Taxes. All
fees are exclusive of value-added tax, sales tax, customs duties, or similar
taxes or imposts, including withholding taxes, and shall be made by Customer
without deduction therefore. Customer shall pay all such taxes or duties, except
taxes based on Accellion’s net income, and reimburse Accellion or its Channel
Partner if either is required to pay any such taxes or duties. 6.3 True-Up
Users. If permitted on the Order, Customer may add Designated Users during the
License Term (“True-Up Users”), by notifying Accellion of the number of True-Up
Users promptly following the end of each calendar quarter in which Customer adds
True-Up Users. Accellion or its Channel Partner will then invoice Customer for
such True-Up Users at a prorated amount of the annual rate stated in the
applicable Order (i.e. for such calendar quarter and the remaining License Term.
Upon payment, True-Up Users shall be deemed Designated Users under this
Agreement and for any renewals. When Customer is permitted to add True-Up Users,
Customer agrees to allow Accellion, with reasonable prior notice, to enter the
premises under Customer’s possession or control during normal business hours,
or, with Customer’s prior consent, not to be unreasonably withheld, to
electronically access the Accellion Solution, or, with respect to Hosting
Services and Web Orders, to monitor use, to verify Customer’s compliance with
this Agreement. Customer shall promptly pay to Accellion any underpaid fees
revealed by such audit and, if the audit reveals an underpayment of 5% or more,
the reasonable costs of the audit. 6.4 Automated Reporting. The Server Software
periodically transmits technical data to Accellion. That data does not include
the content of any emails or attachments, file names or any personally
identifiable information. The transmitted information contains aggregate
non-personal usage information for each day the Accellion Solution is in use,
including but not limited to: (i) the number of and type of messaging senders
and recipients, (ii) account usage information, (iii) technical data about
messaging transmissions and management and domain names and subdomains; and (iv)
the type of Accellion Solution features used and related data. Customer will not
in any way attempt to prevent the transmission or delivery of such usage data.
Accellion uses such data only for Accellion’s own internal business purposes.
Accellion only discloses such data (a) in an aggregated form with data from
other customers in which neither Customer’s identity nor that of Designated
Users are revealed, or (b) as required by applicable law. 7. Confidentiality.
7.1 Confidential Information. Each party agrees not to use the Confidential
Information of the other party for any purpose other than strictly for the
purpose of performing its obligations or exercising its rights under this
Agreement. Additionally, except as authorized below, each party agrees to
maintain in confidence and not disclose any Confidential Information acquired
directly or indirectly from the other party. “Confidential Information” shall
include, but is not limited to, matters of a technical, financial, commercial,
business, or other proprietary nature. The results of any performance,
penetration and/or benchmark tests of the Accellion Solution shall be the
Confidential Information of Accellion. Confidential Information does not include
any information which (a) is or becomes publicly known other than through a
breach of this Agreement by the receiving party; or (b) is already known to the
receiving party at the time of disclosure as evidenced by the Receiving party’s
written documentation, provided that it was not previously obtained directly or
indirectly by the receiving party from the disclosing party; (c) is lawfully
received by the receiving party from a third party having no obligation of
confidentiality with respect thereto; or (d) is proven by receiving party to
have been independently developed by employees of the receiving party who have
not had direct or indirect access to, or directly or indirectly received any,
Confidential Information under this Agreement; or (e) is authorized in writing
by the disclosing party to be released from the confidentiality obligations
herein. Accellion may share Customer Confidential Information with its parent
and subsidiary companies (“Affiliates”), but shall remain liable for any act or
omission of such Affiliates in violation of this Agreement. Each party agrees
that in the event of such party’s actual or threatened violation of the
provisions of this section, the other party will not have an adequate monetary
remedy and shall be entitled to seek appropriated immediate injunctive relief
without any requirement to post bond, in addition to any other available
remedies. 7.2 Customer Protected Data. Customer acknowledges that Accellion does
not need or require access to any files or attachments stored or transmitted
with the Accellion Solution or any personally identifiable information about any
Customer personnel or customers (collectively, “Protected Data”). If Customer
desires Accellion to receive and access any Protected Data, Customer shall first
obtain the written approval of an executive officer of Accellion, which may be
withheld by Accellion in its sole discretion. Customer will be responsible for
the Protected Data and for the contents of the Protected Data. Further, Customer
is responsible for complying with any regulations, laws, or conventions
applicable to the Protected Data. For clarification, Customers in Europe are
specifically responsible of compliance with consent requirements of the General
Data Protection Regulation. 8. Limited Warranties and Disclaimer. 8.1 Limited
Accellion Solution and Hardware Performance Warranty. (a) Warranty. Accellion
warrants to Customer that: (i) the media on which the Accellion Solution is
furnished under normal use will be free from material defects in materials and
workmanship for a period of thirty (30) days after the delivery date; (ii) the
Hardware sold to Customer, if any, will be free from defects in materials and
workmanship for a period of three (3) years from the date it is furnished to
Customer; and (iii) the Accellion Solution and Open Source Software will operate
in substantial conformance with the Documentation for a period of thirty (30)
days after the delivery date. (b) Remedy. Any warranty claim must be made by
written notice to Accellion within the applicable warranty period. Accellion’s
entire liability and Customer’s exclusive remedy under the warranty in
subsection (a) above shall be replacement or repair of the defective media,
Hardware or Accellion Solution that does not meet Accellion’s limited warranty
and if Accellion is unable to repair or replace defective components of the
Accellion Solution within a reasonable period of time (not to exceed thirty (30)
days from Accellion’s receipt of Customer’s notice), this Agreement shall
terminate, in which case: (i) Accellion shall (a) refund all license fees
received by Accellion for the Accellion Solution (and Hardware fees, if any);
and (b) the fees received by Accellion for the unexpired term of Maintenance
Support Services, and (ii) Customer shall (a) uninstall and destroy the
nonconforming Accellion Solution and certify in writing that it has done the
same; and (b) return the Hardware, if any, at Accellion’s expense. Accellion is
not liable under any warranty or otherwise for defects or liability caused by
the use of the Accellion Solution or Hardware in any manner or for any purpose
other than that for which it was licensed to Customer, or for causes not within
Accellion’s reasonable control. Warranties are void if failures are caused in
whole or in part by accident, abuse, misuse, or modifications not authorized in
writing by Accellion. 8.2 Virus Protection. Accellion warrants to Customer that,
to the best of Accellion’s knowledge as of the date of delivery, the Accellion
Solution will be free from any viruses, spyware, trojans, or disabling or
malicious code, provided that Server Software includes disabling mechanisms that
prevent access to the Server Software following expiration of the License Term.
8.3 Limited Services Warranty. Accellion warrants that for a period of thirty
(30) days following installation or professional services, such services will be
provided in a professional and workmanlike manner consistent with generally
accepted industry standards. As Customer’s sole and exclusive remedy and
Accellion’s sole and exclusive liability for breach of the foregoing warranty,
Accellion will, at its sole option and expense, and provided that Accellion is
notified of any such breach during the warranty period, re-perform the services,
or if Accellion is unable to perform the services as warranted, refund the fees
paid to Accellion for the services. 8.4 Disclaimer. THE EXPRESS LIMITED
WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS
EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. ACCELLION DOES NOT WARRANT THAT THE USE OF THE ACCELLION SOLUTION
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL NONMATERIAL DEFICIENCIES OR
ERRORS ARE CAPABLE OF BEING CORRECTED. ACCELLION MAKES NO REPRESENTATIONS OR
WARRANTIES CONCERNING THE PRODUCTS OR SERVICES PROVIDED BY ITS CHANNEL PARTNERS
OR ANY HOSTED SERVICES PROVIDERS, AND SHALL HAVE NO LIABILITY WITH RESPECT TO
ANY ACT OR OMISSION OF ANY CHANNEL PARTNER OR HOSTED SERVICES PROVIDERS. NO
CHANNEL PARTNER OR HOSTED SERVICES PROVIDER SHALL HAVE ANY AUTHORITY TO BIND
ACCELLION TO ANY TERMS OR CONDITIONS OTHER THEN THOSE EXPRESSLY SET FORTH
HEREIN. 9. Indemnification. 9.1 Customer Indemnity. Customer will, at its
expense, indemnify and hold Accellion, its Affiliates and their respective
officers, directors, employees, agents, successors and assigns (“Accellion
Indemnitees”) harmless against any settlement agreed to by Customer, or any
award of damages, liabilities, fines, costs, and/or expenses, including costs of
litigation and reasonable attorneys’ fees, which Accellion Indemnitees may
incur, based upon or arising out of (i) any use of the Accellion Solution by
Customer in breach of this Agreement, and (ii) the data, files, and content
transmitted, shared, or stored using the Accellion Solution. 9.2 Accellion
Indemnity. Accellion will defend any action brought against Customer to the
extent that it is based upon a third party claim that the Accellion Solution
infringes such third-party’s U.S. patent or foreign equivalent existing as of
the Effective Date of the applicable Order or any copyright, or misappropriates
any trade secret (each a “Claim”), and will pay any costs (including reasonable
attorney’s fees) and damages finally awarded or paid in settlement of the Claim
provided that Customer will give Accellion: (i) prompt written notice of such
Claim, (ii) all cooperation and assistance reasonably requested by Accellion in
the defense of the Claim, at Accellion’s expense, and (iii) sole control over
the defense and settlement of the Claim, provided that (a) Customer may
participate in the defense of the Claim at its sole expense, and (b) Accellion
may not, without the prior written consent of Customer, enter into a settlement
which admits liability of Customer or imposes a monetary obligation on Customer.
9.3 Exclusions. Accellion will have no liability for a Claim to the extent it
results from: (a) modification of the Accellion Solution made by a party other
than Accellion, if the Claim would not have arisen but for the modification; (b)
the combination, operation or use of the Accellion Solution with third party
data, software, equipment or devices, if such Claim would not have arisen but
for such combination, operation or use; (c) Customer’s failure to use updated or
modified software provided by Accellion if use of such updated or modified
software or hardware would have resolved the Claim; or (d) compliance by
Accellion with designs, plans or specifications furnished by Customer or on
Customer’s behalf, if the Claim would not have arisen but for such designs,
plans or specifications. 9.4 Remedies. If the Accellion Solution is held or is
likely to be held as infringing, then Accellion may (i) replace the Accellion
Solution, without additional charge, with a non-infringing product that is at
least functionally equivalent; (ii) modify the Accellion Solution to avoid the
infringement; (iii) obtain a license for Customer to continue use of the
Accellion Solution: or (iv) if none of the foregoing are commercially
reasonable, terminate the license for the infringing Accellion Solution and
refund a pro rata portion of all fees received by Accellion for the Accellion
Solution as measured over the License Term. Upon such termination Customer shall
uninstall and destroy the nonconforming Accellion Solution and certify in
writing that it has done the same. ACCELLION’S AGGREGATE INDEMNIFICATION
LIABILITY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION SHALL NOT EXCEED THE
FEES PAID BY CUSTOMER FOR THE APPLICABLE ACCELLION SOLUTION. THIS SECTION 9
SHALL CONSTITUTE ACCELLION’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE
AND EXCLUSIVE REMEDY FOR A CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF
INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. 10. Limitation of Liability. EXCEPT
FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, FOR A BREACH OF SECTION 7
(CONFIDENTIALITY) OR FOR CUSTOMER’S INTENTIONAL BREACH OF THE LICENSES GRANTED
IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, AND ACCELLION’S LICENSORS,
AFFILIATES AND SUPPLIERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF
THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN AN ACTION IN CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT
LIMITING THE FOREGOING IN THIS SECTION, EXCEPT FOR A BREACH OF SECTION 7 OF THIS
AGREEMENT (CONFIDENTIALITY), ACCELLION’S AGGREGATE LIABILITY FOR DAMAGES SHALL
IN NO EVENT EXCEED THE TOTAL FEES RECEIVED FROM THE LICENSES GRANTED TO CUSTOMER
UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS FOR THE APPLICABLE ACCELLION
SOLUTION. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRICES AND TERMS
OF THIS AGREEMENT WERE MADE IN RELIANCE UPON THE LIMITATION OF LIABILITY
SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN ACCELLION AND CUSTOMER. 11.
Term and Termination. 11.1 Term. This Agreement commences on the Effective Date
and shall continue for the License Term on the applicable Order, unless
terminated earlier as provided in this Agreement. Except for trial version which
shall terminate at the end of the applicable trial period, or unless otherwise
expressly set forth on the Order, the License Term shall be automatically
extended for a period of the same duration unless one party provides written
notice of its intent not to renew at least thirty (30) days prior to the end of
the then-current License Term. 11.2 Termination. Either party may terminate this
Agreement or any license granted under this Agreement if: (i) the other party
breaches any material provision of this Agreement for any reason, which breach
has not been cured within thirty (30) days of written notice; or (ii) the other
party becomes subject of a voluntary or involuntary petition in bankruptcy, or
any proceeding relating to insolvency, receivership, liquidation or assignment
for the benefit of creditors, which is not dismissed within sixty (60) days
after commencement. 11.3 Consequences of Termination. Upon termination or
expiration of this Agreement, for any reason, all rights granted under this
Agreement shall terminate, and Customer will promptly return to Accellion or, at
Accellion’s request, destroy, the applicable Accellion Solution and provide
Accellion with written certification by an officer of Customer certifying
compliance with the foregoing. Customer’s obligations to pay taxes and any
amounts past due along with the following provisions shall survive any
expiration or termination of this Agreement: Sections 4.3, 4.4, 4.5, 7, 8, 9,
10, 11.3 and 12. 12. Miscellaneous. 12.1 Notice. Notices under this Agreement
shall in writing and delivered via electronic mail, facsimile (with confirmation
of receipt), in person, by overnight courier, or by prepaid certified or
registered mail, return receipt requested, to a party at its addresses set forth
on the Order, as amended by notice pursuant to this Section. Notice by mail
shall be deemed received five (5) days after deposit in the U.S. mails, with
other notice deemed effective upon receipt. 12.2 Assignment. Neither party may
assign this Agreement without the prior written consent of the other party,
provided that either party may transfer or assign this Agreement without such
consent, whether by operation of law or otherwise, pursuant to a merger or other
corporate reorganization or the sale of all or substantially all of the assets
to which this Agreement relates. Accellion may delegate its obligations to
Accellion Affiliates provided that Accellion shall remain liable for proper
performance of this Agreement. Any other purported assignment by Customer shall
be null and void. This Agreement shall bind the Parties and their permitted
successors and assigns. 12.3 Modification, Waiver, and Remedies. No
modification, alteration, amendment or addition shall be effective unless made
in writing, dated and signed by a duly authorized representative of each party.
No waiver of any breach hereof shall be held to be a waiver of any other or
subsequent breach. Each party’s rights and remedies are in addition to any other
rights and remedies provided by law or in equity. No choice of any remedy shall
constitute an election of remedies. 12.4 Publicity. Customer hereby consents to
Accellion's inclusion of Customer's name in a customer listing, provided that
Customer is not the sole Customer listed. 12.5 Force Majeure. Neither party
shall be liable to the other for delays or failures in performance resulting
from causes beyond the reasonable control of that party, including, but not
limited to, acts of God, labor disputes or disturbances, material shortages or
rationing, riots, acts of war, governmental regulations, communication or
utility failures, or casualties. The foregoing shall not apply to Customer’s
payment and the mutual confidentiality obligations of the Parties. 12.6 Export.
Customer acknowledges that the Accellion Solution is subject to United States
and local country laws governing import, export, distribution and use. Customer
is responsible for compliance by Customer and the Designated Users with United
States and local country laws and regulations and shall not export, use or
transmit the Accellion Solution (i) in violation of any export control laws of
the United States or any other country, (ii) to any country requiring as a
condition of import the disclosure of source code, or (iii) to anyone on the
United States Treasury Department’s list of Specially Designated Nationals or
the U.S. Commerce Department’s Table of Deny Orders. 12.7 Government Licensing.
If the Accellion Solution is accessed or used by any agency or other part of the
U.S. Government, the U.S. Government acknowledges that (i) the Accellion
Solution and accompanying materials constitute “commercial computer software”
and “commercial computer software documentation” under paragraphs 252.227.14 and
252.227.7202 of the DoD Supplement to the Federal Acquisition Regulations
(“DFARS”) or any successor regulations, and the Government is acquiring only the
usage rights specifically granted in this Agreement; (ii) the Accellion Solution
constitutes “restricted computer software” under paragraph 52.227-19 of the
Federal Acquisition Regulations (“FAR”) or any successor regulations and the
government’s usage rights are defined in this Agreement and the FAR. 12.8
Governing Law. This Agreement shall be governed by the laws of the United States
and the State of California, without reference to conflict of laws principles.
Any dispute between the parties regarding this Agreement will be subject to the
exclusive venue of the state and federal courts in the state of California in
San Francisco, San Mateo and Santa Clara counties. If the Accellion entity is
Accellion PTE Ltd., this Agreement shall be governed by the laws of England and
Wales, without reference to conflict of laws principles. Any dispute between the
parties regarding this Agreement will be subject to the exclusive venue of the
courts in and for Singapore. The parties hereby consent to the exclusive
jurisdiction and venue of such courts. Each party hereby waives its right to a
trial by jury for any disputes between the Parties arising from this Agreement.
The parties agree that the Uniform Computer Information Transactions Act and the
United Nations Convention on the International Sale of Goods will not apply to
this Agreement. Any dispute by one party to this Agreement against the other,
which dispute arises from this Agreement, must be brought in accordance with
this Section within one (1) year after the cause of action arises. 12.9
Severability. If any provision of this Agreement is finally determined to be
contrary to, prohibited by, or invalid under applicable laws or regulations,
this Agreement will be modified so as to give effect to the intent of the
Parties to the maximum possible extent. The remaining provisions of this
Agreement shall remain in full force and effect. 12.10 Entire Agreement;
Construction. This Agreement constitutes the complete and exclusive agreement
between the parties and supersedes any and all prior communications,
representations and understandings, whether written or oral. There are no
third-party beneficiaries of Customer. Section headings are for convenience only
and shall not affect interpretation of the relevant section. This Agreement is
in the English language only, which language shall be controlling in all
respects, and all versions hereof in any other language shall not be binding on
the parties hereto. All communications and notices to be made or given pursuant
to this Agreement shall be in the English language. This Agreement may be
executed in counterparts, each of which shall be considered an original, but all
of which together shall constitute the same instrument. Execution and delivery
of this Agreement may be evidenced by facsimile or PDF (Portable Document
Format) and shall hold the same force and effect as an original signature for
purposes of binding the Parties. 13. Web Order Terms. The terms of this Section
13 apply to Web Orders only. REGARDLESS OF WHERE CUSTOMER IS LOCATED,
“ACCELLION” MEANS ACCELLION, INC., A DELAWARE CORPORATION WITH A PLACE OF
BUSINESS AT 1804 EMBARCADERO PLACE, SUITE 200, PALO ALTO, CA 94303 13.1 License
Term; Renewals. Customer’s initial License Term shall be from the date of
purchase through the term of the type of account purchased by Customer (monthly
or annual) and shall automatically renew for additional terms of the same
duration unless Customer cancels by sending an email to cancel@accellion.com
which includes Customer’s customer I.D. and the email address of the originator
of Customer’s account. IF CUSTOMER DOESN'T CANCEL CUSTOMER’S SUBSCRIPTION BY THE
END OF THE THEN-CURRENT LICENSE TERM, CUSTOMER WILL BE CHARGED FOR, AGREES TO
PAY SUBSCRIPTION FEES AND AUTHORIZES ACCELLION TO CHARGE CUSTOMER’S CREDIT CARD
ON FILE FOR A SUBSEQUENT LICENSE TERM. 13.2 Storage and Bandwidth Fees. For the
hosted version of the Accellion Solution, Customer’s use is subject to storage
and bandwidth limitations and Customer will be charged $1.00 per gigabyte (or
the then-current per-gigabyte charge) that exceeds the storage limit or
bandwidth limit for Customer’s subscription (“Excessive Use Charges”). Customer
may review Customer’s storage and bandwidth usage through the Admin Console. To
purchase additional bandwidth and/or storage, contact sales@accellion.com. Fees
for Customer’s subscription together with Excessive Use Charges are referred to
as “Subscription Fees.” CUSTOMER CONSENTS TO ALLOW ACCELLION TO CHARGE
CUSTOMER’S CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR
EXCESSIVE USE CHARGES. 13.3 Communications from Accellion. Customer understands
and agrees that Customer and Designated Users may receive certain communications
from Accellion, such as service announcements and administrative messages, and
that Customer and Designated Users will not be able to opt out of receiving
them. 13.4 Restrictions. Customer acknowledges and agrees that Customer,
Designated Users and other users with access to shared folders: (i) will not use
the Accellion Solution to transmit any communications or messages that
constitute spam, are obscene, abusive, harassing, threatening, racist,
malicious, illegal, fraudulent, defamatory, libelous, harmful to minors, or that
violate or infringe the rights of third parties; and (ii) will comply with
policies applicable to the hosted version of the Accellion Solution as made
available to Customer by Accellion from time to time. 13.5 Representations and
Warranties. Customer represents and warrants to Accellion that: (i) Customer and
Designated Users are not subject to export control restrictions established by
laws and regulations of the United States of America and Customer shall comply
with all export and import laws, rules, regulations and restrictions of the
jurisdictions in which Customer resides; (ii) Customer, Designated Users, and
other users with access to shared folders have all necessary rights to any data
stored on or sent with the Accellion Solution (“Customer Data”) and that use of
Customer Data as contemplated herein does not violate any third party rights;
and (iii) Customer hereby grant Accellion and its contractors the right to use,
copy, cache and transmit Customer’s Data in conjunction with Customer’s use of
the Accellion Solution. 13.6 Termination. (a) Termination by Customer. Customer
may terminate this Agreement at any time by contacting cancel@accellion.com and
providing Customer’s relevant Account Info and the email address of the
originator of Customer’s account. (b) Termination by Accellion. Accellion may
terminate this Agreement without notice if: (i) Customer is in default and/or if
Customer fails to pay applicable fees, (ii) if Customer otherwise violates the
express terms of this Agreement, or (iii) in the event Accellion is prevented
from providing any portion or all of the hosted version of the Accellion
Solution by the actions of a third party. (c) Effect of Termination. In the
event Accellion terminates this Agreement pursuant to Section 13.6(b)(iii)
above, Accellion shall remit to customer a pro rata amount of any prepayment. In
the event this Agreement is terminated for any other reason, Customer will not
be entitled a refund of any prepaid amounts and will remain liable to pay for
Excessive Use Charges. Upon termination, the licenses granted to Customer by
Accellion shall cease, Customer’s account will be terminated following billing
and payment of any past due amounts, and Customer will no longer be able to use
the Accellion Solution. In addition to the terms identified in Section 11.3,
Sections 13.5, 13.6(c), and 13.7 shall survive expiration or termination of this
Agreement. 13.7 Inapplicability of Certain Terms. The support provisions of
Section 5 and the indemnification provisions in Sections 9.2, 9.3 and 9.4 shall
not apply to Web Orders, although Customer will be entitled to receive Updates.
13.8 Assignment. Neither this Agreement nor any rights or obligations of
Customer hereunder may be assigned by Customer in whole or in part without the
prior written approval of Accellion. Any assignment in violation of the
foregoing shall be null and void. 13.9 Miscellaneous. Accellion may modify or
amend this Agreement at any time by posting a revised version on our website at
www.accellion.com which Customer agrees constitutes sufficient notice to
Customer of such modification or amendment. Such amendments and modifications
shall be effective upon renewal of Customer’s License Term. As a party to this
Agreement, Customer, if a resident of California, is entitled to the following
specific consumer information under California Civil Code Section 1789.3: The
Complaint assistance Unit of the Division of Consumer Services of the Department
of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento,
California 95814, or by telephone at (800) 952-5210. Florida residents may
contact the Florida Department of Financial Services in writing at 200 East
Gaines Street, Tallahassee, Florida, 32399, or by telephone at 1-800-342-2762.

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