Terms of Service
SUBSCRIPTION AND SERVICES AGREEMENT
This subscription and services agreement (the “Agreement”), the relevant terms of the Documentation, and any executed Orders and/or SOWs between the parties, are incorporated herein and shall govern the provision of the Services. Customer and its Affiliates may place orders under this Agreement by submitting separate Order(s) and SOW(s). This Agreement shall commence on the Effective Date of Customer’s first executed Order or SOW (“Effective Date”) and will continue until otherwise terminated in accordance with Section 12 below.1. DEFINITIONS.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Ancillary Programs” means certain enabling software or tools, which Pure IoT CC makes available to Customer for download as part of the Subscription Services for purposes of facilitating Customer access to, operation of, and/or use with the Subscription Services.
“Authorized Contractors” means independent contractors, licensors, or subcontractors.
“Customer Applications” means all software programs, including without limitation Drupal, Node.js, and Magento, that Customer uses on the cloud platform comprising part of the Subscription Services. Subscription Services do not fall within the meaning of Customer Applications.
“Customer Data” means all data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted, or otherwise used by or for Customer to the Subscription Services.
“Data Centre Region” refers to the geographic region in which the Customer Data is housed.
“Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Professional Services.
“Documentation” means Pure IoT CC ’s product guides and other end user documentation for the Subscription Services and Ancillary Programs available online and through the help feature of the Subscription Services, as may be updated by Pure IoT CC from time to reflect the then-current Subscription Services.
“Order” or “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Pure IoT CC and Customer from time to time, including any addenda and supplements thereto. Customer Affiliates may purchase Services subject to this Agreement by executing Orders hereunder.
“Professional Services” means fee-based migration, implementation, training, or consulting services that Pure IoT CC performs as described in an Order or SOW but excluding Support Services.
“Services” means the Subscription Services and Professional Services that Customer may purchase under an Order or SOW.
“Statement of Work” or “SOW” means a statement of work entered into and executed by the parties describing Professional Services to be provided by Pure IoT CC to Customer.
“Subscription Services” means the cloud platform made available by Pure IoT CC to Customer, the software made available by Pure IoT CC to Customer online via the applicable customer logins and/or associated Support Services, as ordered by Customer under an Order, as applicable.
“Support Services” means the level of support services purchased by Customer pursuant to an Order.
“Subscription Term” means the term of Subscription Services purchased by Customer which shall commence on the start date specified in the applicable Order and continue for the subscription term specified therein and any renewals thereto.
“Trial Services” means any Pure IoT CC product, service or functionality that may be made available by Pure IoT CC to Customer to try at Customer’s option, at no additional charge, and which is designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “evaluation,” or by a similar designation.
“Third Party Marketplace” means any non- Pure IoT CC products or services made available as an accommodation through Pure IoT CC ’s website, which are subject to change during the Subscription Term.
2. SUBSCRIPTION SERVICES
2.1. Provision of Subscription Services. Pure IoT CC will make the Subscription Services available to Customer pursuant to this Agreement, the Documentation, and the relevant Order Form during the Subscription Term, solely for Customer’s internal business purposes. Pure IoT CC ’s Affiliates and its Authorized Contractors may perform certain aspects of the Services and access Customer Data and Customer Applications provided that Pure IoT CC remain fully liable for same and responsible for ensuring that any of Pure IoT CC ’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Customer’s Affiliates and its Authorized Contractors may access certain aspects of the Services hosted or provided through such Services provided that Customer remain fully liable for same and responsible for ensuring that any of Customer’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Customer’s use of the Subscription Services includes the right to access all functionality available in the Subscription Services during the Subscription Term. So long as Pure IoT CC does not materially degrade the functionality, as described in the Documentation, of the Subscription Services during the applicable Subscription Term (i) Pure IoT CC may modify the systems and environment used to provide the Subscription Services to reflect changes in technology, industry practices and patterns of system use, and (ii) update the Documentation accordingly. Subsequent updates, upgrades, enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge, but the purchase of Subscription Services is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements to the Subscription Services may be marketed separately by Pure IoT CC and may require the payment of additional fees. Pure IoT CC will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.
2.2 Trial Services. If Customer registers or accepts an invitation for Trial Services, including through Pure IoT CC ’s website, or executes an Order for the same, Pure IoT CC will make such Trial Services available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Trial Services, or (b) the end date specified in the applicable Order. Trial Services are provided for evaluation purposes and not for production use. Customer shall have sole responsibility and Pure IoT CC assumes no liability for any Customer Data that Customer may choose to upload on the Trial Services. Trial Services may contain bugs or errors and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND PURE IOT CC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES. Pure IoT CC may, in its sole discretion, discontinue Trial Services at any time.
2.3. Third Party Marketplace. As part of the Subscription Services, Pure IoT CC may provide access to the Third-Party Marketplace solely as an accommodation to Customer. Customer may choose to use any, all or none of the offerings on such Third-Party Marketplace at its sole discretion. Customer’s use of any offering on the Third-Party Marketplace is subject to the applicable provider’s terms and conditions and any such terms and conditions associated with such use are solely between Customer and such third-party provider. Pure IoT CC does not provide any Support Services for Third Party Marketplace products and services.
2.4 Ancillary Programs. As part of the Subscription Services, Pure IoT CC may provide Customer with access to download certain Ancillary Programs for use with the Subscription Services. Pure IoT CC grants Customer during the Subscription Term a non-exclusive, non-transferable non-assignable, limited licensed to use such Ancillary Programs in object code (machine readable) format only on each site hosted by Pure IoT CC under an Order for Subscription Service to facilitate Customer access to, operation of, and/or use of the Subscription Services subject to the terms of this Agreement. Ancillary Programs shall only be used to upload, download, and synchronize files between Customer’s computer or other Customer owned or controlled devices and the Subscription Services.
3. SECURITY AND DATA PRIVACY
3.1. Security and Internal Controls. In accordance with Pure IoT CC ’s Security Annex incorporated herein by reference, Pure IoT CC shall (i) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Subscription Services, and of the Customer Data contained within the Subscription Services, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (ii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and (iii)perform periodic testing by independent third party audit organizations, which include with Service Organization Controls 1 (SOC 1), SOC 2 audits and ISO 27001 certification or surveillance audits performed annually. In no event during the Subscription Term shall Pure IoT CC materially diminish the protections provided by the controls set forth in Pure IoT CC ’s then-current Security Annex.
3.3. Compliance with Law. Pure IoT CC will comply with all laws applicable to the provision of the Subscription Services, including applicable security breach notification laws, but not including any laws applicable to the Customer’s industry that is not generally applicable to information technology services providers.
4. CUSTOMER OBLIGATIONS
4.1. Responsibilities. Customer shall (i) access and use the Services in accordance with this Agreement, applicable laws and government regulations and Pure IoT CC ’s Acceptable Use Policy incorporated herein by reference, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Pure IoT CC promptly of any such unauthorized access or use, and (iii) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications.
4.2. Customer Data. Customer has and shall maintain all rights as are required to allow Pure IoT CC to provide the Subscription Services to Customer as set forth in this Agreement, including without limitation to send the Customer Data to Pure IoT CC pursuant to this Agreement and to allow Pure IoT CC to access, use, and store Customer Data to provide the Subscription Services pursuant to this Agreement. Customer is responsible for its legal and regulatory compliance in its use of any Subscription Services and shall make Pure IoT CC aware of any Customer Data processed, stored, or transmitted through the Subscription Services for which regulations other than those set forth in the Security Annex apply. If, in the course of providing Subscription Services, Pure IoT CC agrees in writing to process such Customer Data and Customer has subscribed to any applicable Subscription Services, Pure IoT CC shall process it only as permitted under this Agreement and in compliance with data protection legislation to which Pure IoT CC is subject as a service provider.
4.3 Restrictions. Customer shall not (i) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription Services or Ancillary Programs), (ii) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services, (iii) copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services, Ancillary Programs, or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services or the Ancillary Programs), (iv) create a competitive offering based on the Subscription Services, and (v) disclose any benchmark or performance tests of the Subscription Services.
5. PROFESSIONAL SERVICES
5.1. Standard Professional Services. A description of Pure IoT CC ’s standard Professional Services offerings, including training, and workshops, may be found in the Documentation. Standard Professional Services may be identified in an Order without the need for issuance of an SOW.
5.2. Other Professional Services. For any non-standard Professional Services, Pure IoT CC will provide Customer with Professional Services as set forth in the applicable SOW. Each SOW will include, at a minimum (i) a description of the Professional Services and any Deliverable to be delivered to Customer; (ii) the scope of Professional Services; (iii) the schedule for the provision of such Professional Services; and (iv) the applicable fees and payment terms for such Professional Services, if not specified elsewhere.
5.3. Change Orders. Changes to an SOW or Order Form will require, and shall become effective only when, fully documented in a written change order (each a “Change Order”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement.
5.4. Designated Contact and Cooperation. Each party will designate in each SOW an individual who will be the primary point of contact between the parties for all matters relating to the Professional Services to be performed thereunder. Customer will cooperate with Pure IoT CC, will provide Pure IoT CC with accurate and complete information, will provide Pure IoT CC with such assistance and access as Pure IoT CC may reasonably request, and will fulfil its responsibilities as set forth in this Agreement and the applicable SOW. If applicable, while on Customer premises for Professional Services, Pure IoT CC personnel shall comply with reasonable Customer rules and regulations regarding safety, conduct, and security made known to Pure IoT CC.
6. FEES AND PAYMENT
6.1. Fees. Customer shall pay all fees specified in each Order and SOW and any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order. Except as otherwise specified herein or in fees are payable in South African Rands, (ii) fees are based on Services purchased, regardless of usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, (iv) all Services shall be deemed accepted upon delivery, and (v) the Subscription Services purchased cannot be decreased during the relevant Subscription Term. Customer shall reimburse Pure IoT CC for out-of-pocket expenses incurred by Pure IoT CC in connection with its performance of Services. Pure IoT CC will provide Customer with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
6.2. Invoicing and Payment. Unless otherwise specified in an Order, fees for Subscription Services specified in an Order will be invoiced annually in advance, fees for overages will be calculated and invoiced monthly in arrears, and, unless otherwise set forth in an SOW, all fees and expenses for standard Professional Services as described in Section 5.1 shall be invoiced upon completion, and all fees and expenses for non-standard Professional Services as described in 5.2 will be invoiced monthly in arrears on a time and materials basis. Except as otherwise stated in the applicable Order or SOW, Customer agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) Pure IoT CC reserves the right to suspend the Subscription Services upon thirty (30) days’ notice, until such amounts are paid in full, and (ii) Pure IoT CC will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due, together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Pure IoT CC in collecting such overdue amounts or otherwise enforcing Pure IoT CC ‘s rights hereunder; provided that Pure IoT CC will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
6.3. Taxes. Fees for Services exclude all sales, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, “Taxes”) arising from Pure IoT CC ’s provision of the Services hereunder, except any taxes assessed on Pure IoT CC ’s net income. If Pure IoT CC is required to directly pay or collect Taxes related to Customer’s use or receipt of the Services hereunder, Customer agrees to promptly reimburse Pure IoT CC for any amounts paid by Pure IoT CC.
7. PROPRIETARY RIGHTS
7.1. Subscription Services. Except for the rights expressly granted under this Agreement, Pure IoT CC and its licensors retain all right, title, and interest in and to the Subscription Services and Documentation, including all related intellectual property rights therein. Pure IoT CC reserves all rights in and to the Subscription Services and Documentation not expressly granted to Customer under this Agreement. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Pure IoT CC.
7.2 Ancillary Programs, Third Party Software. The Subscription Services (including Ancillary Programs) may interoperate with certain software products, including open-source software, owned by third parties, and licensed directly to the Customer by such third party (“Third Party Software”). Such Third-Party Software is provided to the Customer without liability or obligation by Pure IoT CC and is governed by a license agreement directly between the Customer and the respective owner of the Third-Party Software. Such license agreement may be found in the relevant section of the user interface subdirectory available through the Documentation.
7.3. Customer Data and Customer Applications. As between Customer and Pure IoT CC, Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data and Customer Applications, including any intellectual property rights therein. Customer hereby grants Pure IoT CC, its Affiliates and applicable Authorized Contractors all necessary rights to host, use, process, store, display and transmit Customer Data and Customer Applications solely as necessary for Pure IoT CC to provide the Services in accordance with this Agreement. By using Ancillary Programs Customer Grants Pure IoT CC permission to access Customer’s computer or other devices to the extent necessary in enabling Ancillary Programs. Customer represents that it has, and warrants that it shall maintain, all rights as required to allow Pure IoT CC to compile, use, store, and retain aggregated Customer Data, including without limitation in combination with other Pure IoT CC customers’ data, for internal or marketing uses (provided that no such marketing use shall include any information that can identify Customer or its customers). Subject to the limited licenses granted herein, Pure IoT CC acquires no right, title or interest from Customer or Customer licensors hereunder in or to Customer Data and Customer Applications, including any intellectual property rights therein. Customer reserves all rights in and to the Customer Data that are not expressly granted to Pure IoT CC pursuant to this Agreement.
7.4. Deliverables. Excluding any property that constitutes Outside Property, any Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated Professional Services fees. Pure IoT CC shall execute and, at Customer’s written request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Customer’s rights to the ownership of such Deliverables. For purposes of this Agreement, “Outside Property” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user-interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Pure IoT CC possesses or owns prior to the commencement of Professional Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property. Outside Property shall also include any enhancements, modifications or derivatives made by Pure IoT CC to the Outside Property while performing Professional Services hereunder, and any software, modules, routines or algorithms which are developed by Pure IoT CC during the term in providing the Professional Services to Customer, provided such software, modules, routines or algorithms have general application to work performed by Pure IoT CC for its other customers and do not include any content that is specific to Customer or which, directly or indirectly, incorporate or disclose Customer’s Confidential Information.
7.5. Outside Property License. To the extent that Pure IoT CC incorporates any Outside Property into any Deliverables, then Pure IoT CC hereby grants Customer a limited, royalty-free, non-exclusive, non-transferable (subject to Section 14.11), without right to sublicense, license to use such Outside Property delivered to Customer solely as necessary for and in conjunction with Customer’s use of the Deliverables.
8.1. Definition of Confidential Information. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of this Agreement (including pricing and other terms set forth in all Order Forms and/or SOWs hereunder), related benchmark or similar test results, other technology and technical information, security information, security audit reports, and business and marketing plans, except that Pure IoT CC may reference and use Customer’s name, logos and the nature of the Services provided hereunder in Pure IoT CC ’s business development and marketing efforts.
8.2. Exceptions. Confidential Information shall not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
8.3. Protection of Confidential Information. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (ii) limit access to Confidential Information of Disclosing Party to those of its and its Authorized Contractors, Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation, or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party’s cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Pure IoT CC Representations & Warranties. Pure IoT CC represents and warrants that (i) Pure IoT CC has the legal authority to enter into this Agreement, (ii) the Subscription Services will materially conform with the relevant Documentation, (iii) the functionality and security of the Subscription Services will not be materially decreased during a Subscription Term, and (iv) Professional Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.
9.2. Remedies. For any failure of any Subscription Services or Professional Services, as applicable, to conform to their respective warranties, Pure IoT CC ’s liability and Customer’s sole and exclusive remedy shall be for Pure IoT CC , in the case of a breach of the warranty set forth in Section 9.1 (ii), (iii), and/or (iv), to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Section 9.1 (iv) to re-perform the affected Professional Services. If the foregoing remedies are not commercially practicable, Pure IoT CC may, in its sole discretion, terminate the applicable Order or SOW upon providing Customer with written notice thereof, and, as Customer’s sole and exclusive remedy, refund to Customer (a) in the case of breach of the warranty set forth in Section 9.1(ii) or (iii), any Subscription Services fees paid by Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming Subscription Services; or (b) in the case of breach of the warranty set forth in Section 9.1(iv), any fees paid by Customer for the portion of Professional Services giving rise to the breach.
9.3. Customer Representations & Warranties. Customer represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules, and regulations.
9.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PURE IOT CC MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND PURE IOT CC HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Pure IoT CC. Pure IoT CC shall indemnify, defend and hold Customer harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Subscription Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer”); provided that Customer (a) promptly gives Pure IoT CC written notice of the Claim Against Customer; (b) gives Pure IoT CC sole control of the defence and settlement of the Claim Against Customer (provided that Pure IoT CC may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to Pure IoT CC all reasonable assistance, at Pure IoT CC ’s expense. In the event of a Claim Against Customer, or if Pure IoT CC reasonably believes the Subscription Services may infringe or misappropriate, Pure IoT CC may in Pure IoT CC ’s sole discretion and at no cost to Customer (i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching Pure IoT CC ’s warranties hereunder, (ii) obtain a license for Customer’s continued use of Subscription Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for such Subscription Services and refund to Customer any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Notwithstanding the foregoing, Pure IoT CC shall have no obligation to indemnify, defend, or hold Customer harmless from any Claim Against Customer to the extent it arises from (i) Customer Data or Customer Applications, (ii) use by Customer after notice by Pure IoT CC to discontinue use of all or a portion of the Subscription Services, (iii) use of Services by Customer in combination with equipment or software not supplied by Pure IoT CC where the Service itself would not be infringing, (iv) or Customer’s breach of this Agreement.
10.2. Indemnification by Customer. Customer shall indemnify, defend and hold Pure IoT CC harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees)resulting from any claim, demand, suit or proceeding made or brought against Pure IoT CC by a third party alleging that Customer Data or Customer Application violates applicable law or a third party’s rights (a “Claim Against Pure IoT CC “); provided that Pure IoT CC (a) promptly gives Customer written notice of the Claim Against Pure IoT CC ; (b) gives Customer sole control of the defence and settlement of the Claim Against Pure IoT CC (provided that Customer may not settle any Claim Against Pure IoT CC unless the settlement unconditionally releases Pure IoT CC of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. EXCEPT FOR (I) EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 10 (MUTUAL INDEMNIFICATION), (II) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (III) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR (IV) ANY OTHER LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW (THE “EXCLUDED MATTERS”), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM AND/OR SOW IN THE 12 MONTHS PRECEDING THE APPLICABLE INCIDENT.
11.2. Exclusion of Consequential and Related Damages. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the Effective Date and continues until otherwise terminated, by written agreement of the parties, in accordance with Section 12.3 or upon the expiration of the last Subscription Term or renewal thereof.
12.2. Renewal of Subscription Services. Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive one-year periods, unless and until terminated by either party in accordance herewith or unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current Subscription Term. Pure IoT CC may increase pricing applicable to the renewal of any then-current Subscription Term by providing Customer with notice thereof, including by email, at least seventy-five (75) days prior to the end of such term.
12.3. Termination. A party may terminate this Agreement (or, at such party’s option, the individual Order Forms or SOWs affected by the applicable breach), for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such same 30 day period, or (ii) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of an Order or SOW for cause by Customer and upon Customer’s written request, Pure IoT CC shall refund, on a pro rata basis, any fees paid thereunder that cover the remainder of the applicable Subscription Term after the effective date of termination. Upon termination of an Order or SOW for cause by Pure IoT CC, all amounts owed by Customer thereunder shall become due and payable. In no event shall any termination relieve Customer of the obligation to pay all fees payable to Pure IoT CC for the period prior to the effective date of termination. Upon termination of an Order Form or this Agreement for any reason, Customer’s right to access and use the Subscription Services (including any Ancillary Programs) terminates. Upon such termination, Customer must (a) immediately destroy all copies of the Ancillary Programs, and (b) immediately and, upon Pure IoT CC ’s request, provide Pure IoT CC with written certification of such destruction.
12.4. Data Portability and Deletion. Upon request made by Customer within 7 days of termination or expiration of the Subscription Services, Pure IoT CC will make Customer Data and Customer Applications available to Customer for export or download as provided in the Documentation. At the end of such 7-day period, Pure IoT CC will delete or otherwise render inaccessible any Customer Data and Customer Applications, unless legally prohibited. Pure IoT CC has no obligation to retain the Customer Data for Customer purposes after this 7-day post termination period.
12.5. Survival. Section 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund upon Termination), 13 (Notices, Governing Law, and Jurisdiction) and 14 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW, AND JURISDICTION
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all legal notices of default, breach, or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth in the applicable Order Form or SOW, as such party may update such information from time to time, with, in the case of notices sent by Customer, a copy sent to the Pure IoT CC Legal Department at the address first set forth above. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer on the applicable Order.
13.2. Governing Law and Jurisdiction. This Agreement will be governed by the laws of South Africa, without regard to its conflicts of law principles (“Governing Law”) as applied with the Applicable Law.
14. GENERAL PROVISIONS
14.1. Import and Export Compliance. Each party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations.
14.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
14.3. Subscription Service Analyses. Pure IoT CC may (i) compile statistical and other information related to the performance, operation, and use of the Subscription Services, and (ii) use, and share data from the Subscription Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as ‘Subscription Service Analyses”). Subscription Service Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Pure IoT CC retains all intellectual property rights in Subscription Service Analyses.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.6. Non-Solicitation. Customer agrees that during the term of each Order Form and/or SOW and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed by Pure IoT CC who participated in the performance ofServices under the applicable Order Form and/or SOW. Nothing in this clause shall be construed to prohibit individual Pure IoT CC employees from responding to public employment advertisements, postings, or job fairs of Customer, provided such response is not prompted by Customer intentionally circumventing the restrictions of this Section.
14.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.8. Public Relations. Customer agrees that Pure IoT CC may identify Customer as a Pure IoT CC customer in advertising, media relations, trade shows, the website, and other similar promotional activities, using Customer’s name and trademarks in accordance with Customer’s trademark guidelines. Customer shall also assist Pure IoT CC in preparing a press release announcing Customer as a new Pure IoT CC Customer, with the view to publishing within 60 days following the Effective Date and in preparing a case study for external use that details Customer’s use of the Services within 6 months following the Effective Date. Pure IoT CC shall not publish such press release or case study without Customer’s prior, written approval as to its contents.
14.9. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
14.10. Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labour difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
14.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.12. Assignment. Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and SOWs), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
14.13. Entire Agreement. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any Order Form or SOW, the terms of such Order Form or SOW shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a PO, payment system, other order documentation or otherwise (excluding Order Forms and/or SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.