Terms Of Use

MASTER SUBSCRIPTION AGREEMENT

THIS AGREEMENT GOVERNS ACCESS AND USE OF THE SERVICES OFFERED BY MY OFFICE APPS, INC. MY OFFICE APPS IS WILLING TO SUPPLY WITHIN THE PROTECTION OF A CONFIDENTIAL RELATIONSHIP, ACCESS TO PROPRIETARY SOFTWARE SERVICE ALSO KNOWN AS THE KECHIETM SUITE OF APPLICATIONS, INCLUDING ACCESS ON A SUBSCRIPTION BASIS, ON A TRIAL BASIS, AND OR EVALUATION BASIS FOR EVALUATING WHETHER TO ENTER INTO FULL COMMERCIAL BUSINESS ARRANGEMENT WITH MY OFFICE APPS, ALL SERVICES REFERRED HEREIN AS (“SUBSCRIPTION SERVICES”).

PLEASE READ VERY CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE USING MY OFFICE APPS SERVICES. BY ACCESSING ANY OF THE SUBSCRIPTION SERVICES, SUBSCRIBER AGREES TO ENTER INTO A CONFIDENTIAL RELATIONSHIP AND TO USE AND OR TRY AND OR TEST THE SUBSCRIPTION SERVICES AND REPORT TO MY OFFICE APPS ON A CONFIDENTIAL BASIS THE PERFORMANCE OF THE SUBSCRIPTION SERVICES IF REQUESTED, AND FURTHER AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS MASTER SUBSCRIPTION AGREEMENT.

1. TERMS AND CONDITIONS
1.1. Conditional Access to Subscription Services. Accessing or otherwise using the Subscription Services requires Subscriber to agree to be bound by all of the terms and conditions of this Agreement.

1.2. Authority. By entering into this agreement on behalf of a company or other legal entity, Subscriber represents that Subscriber has the authority to bind such entity to the terms and conditions of this agreement.

1.3. Terms & Conditions: This Agreement governs Subscriber access and use of My Office Apps’ Subscription Services, including My Office Apps proprietary KechieTM suite of applications for any of My Office Apps Subscription Services, and no other agreement of any kind in any document, writing or communication whatsoever made by Subscriber to My Office Apps or its employees, representatives or agents shall be applicable to or binding on My Office Apps, unless expressly authorized or referred to in this Agreement, such as Additional Terms that may be provided upon commencement of Free Trial Services or during purchase of Purchased Services for particular Subscription Services.

2. DEFINITIONS

2.1. Additional Terms. Additional Terms or Additional Trial Terms and Conditions shall mean terms outside of this Agreement that may appear on My Office Apps’ website. Any such Additional Terms are incorporated into this Agreement by reference and are legally binding.

2.2. Beta Services: Beta Services shall mean any Subscription Services accessed by Subscriber for evaluation purposes; Beta Services may not be generally available to Subscriber.

2.3. Confidential or Proprietary Information: Confidential Information or Proprietary Information shall mean the Content and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.

2.4. Content: Content shall mean any software, platform, data, or information created or provided by My Office Apps to end-users including Subscribers through online access or downloadable medium.

2.5. Subscriber Data: Subscriber Data shall mean data or information that Subscriber uploads or enters into the environment provided to Subscriber via access to Subscription Services.

2.6. Documentation: Documentation shall mean My Office Apps’ online user guides, documentation, and help and training materials, which may or may not be provided to users.

2.7. Free Trial Services; Free Trial Period: Free Trial Services shall mean any Subscription Services offered by My Office Apps without requiring a Purchase Order, without charge to Subscriber and for a limited time referred herein as the Free Trial Period.

2.8. Purchase Order: A Purchase Order shall mean any Subscriber order for Subscription Services.

2.9. Purchased Services: Purchased Services shall mean any Subscription Services that Subscriber has purchased under a Purchase Order, as distinguished from those provided pursuant to a free trial.

2.10. Software: Software shall mean any software that Subscriber may be allowed to use or download, either with a purchase or at no charge, in connection with some Subscription Services and which may update automatically.

2.11. Subscription Services: As mentioned above Subscription Services shall mean any service offered by My Office App, including any access on a subscription basis, on a trial basis, and or evaluation basis such as Beta Services, as well as any of the products and services that are ordered by Subscriber, whether under a free trial or a Purchase Order and made available online by My Office Apps, including any associated offline components.

2.12. Third-Party Applications: Third Party Applications shall mean products or services that may be made available by My Office Apps or third parties for integration with Subscription Services.

2.13. Users: Users shall mean those individuals authorized by Subscriber or on Subscriber’s behalf to use any of My Office Apps’ Subscription Services.

3. FREE TRIAL SERVICES

3.1. Registration. Upon Subscriber registration on My Office Apps’ website for Free Trial Services, My Office Apps shall make one or more Subscription Services available to Subscriber on a trial basis free of charge until the earlier of (a) the end of the Free Trial Period for which Subscriber registered- as designated on the website, in a Purchase Order, or otherwise by My Office Apps; or (b) the start date of any Purchased Service subscriptions ordered by Subscriber. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

3.2. No Storage of Subscriber Data. Any data Subscriber enters as result of using the Subscription Services under trial basis or during a Free Trial Period, and any customizations made to the Subscription Services by or for Subscriber, during Subscriber’s free trial will be permanently lost unless Subscriber purchases a subscription to the same services as those covered by the trial, purchases upgraded services, or exports such data, before the end of the Free Trial Period. Accordingly:

3.2.1. SUBSCRIBER MUST EXPORT SUBSCRIBER’S DATA BEFORE THE END OF THE TRIAL PERIOD OR SUBSCRIBER’S DATA WILL BE PERMANENTLY LOST.

3.3. Termination of Free Trial Services. My Office Apps may terminate or immediately suspend Subscriber’s Free Service at any time for any reason without any liability. Subscriber acknowledge Subscriber’s Free Service may not be complete or fully functional and may contain bugs, errors, omissions and other problems.

3.4. NO WARRANTIES. NOTWITHSTANDING SECTION 10 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL or BETA TESTING PERIOD, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, INDEMNITY, CONFIDENTIALITY OR SUPPORT OBLIGATIONS.

4. OUR RESPONSIBILITIES

4.1. Provision of Purchased Services. My Office Apps will (a) make the Subscription Services available to Subscriber pursuant to this Agreement and the applicable Purchase Orders; (b) provide My Office Apps’ standard support for the Purchased Services to Subscriber at no additional charge, and/or upgraded support if purchased; and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which My Office Apps shall give at least 8 hours electronic notice and which My Office Apps shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond My Office Apps’ reasonable control, including without limitation those identified in Section 15.7 of this Agreement.

4.2. No Unnecessary Monitoring Subscriber Data. My Office Apps will not monitor Subscriber Data, or reveal any aspect of Subscriber Data except: (i) as needed to provide, support or improve the provision of the Services, (ii) investigate potential or suspected fraud, (iii) where instructed or permitted by Subscriber, or (iv) as otherwise required by law or to exercise or protect My Office Apps’ legal rights.

4.3. My Office Apps’ Personnel. My Office Apps will be responsible for the performance of My Office Apps’ personnel (including employees and independent contractors working within the scope of their duties) and their compliance with My Office Apps’ obligations under this Agreement, except as otherwise specified herein.

4.4. Beta Services. From time to time, My Office Apps may invite Subscriber to try Beta Services at no charge. Subscriber may accept or decline any such trial in Subscriber’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered Purchased Services or Free Trial Services under this Agreement, are not supported, and may be subject to Additional Terms. My Office Apps may discontinue Beta Services at any time in My Office Apps’ sole discretion and may never make them generally available. My Office Apps will have no liability for any harm or damage arising out of or in connection with a Beta Service.

4.4.1. NO WARRANTY. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

4.4.2. THE PARTIES ACKNOWLEDGE THAT THE BETA SERVICE IS FOR USE IN A BETA TEST. COMPANY DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.4.3. Beta Services License. Subject to the terms of this Agreement, My Office Apps grants to Subscriber a non-sublicensable, nonexclusive license to use the Beta Services during the term of this Agreement unless explicitly agreed to in writing by the My Office Apps. My Office Apps shall at all times retain all title to and ownership of the Beta Services and all ancillary products thereof. Subscriber agrees to use the Beta Services only in the ordinary course of testing, and Subscriber will not reproduce or modify the Beta Services or any portion thereof. Subscriber shall not rent, sell, lease or otherwise transfer the Beta Services or any part thereof or use it for the benefit of a third party. Subscriber shall not reverse assemble, reverse compile or reverse engineer the Beta Services, or otherwise attempt to discover any Beta Services underlying Proprietary Information.

5. USE OF SERVICES

5.1. Subscriptions. Unless otherwise provided in the applicable Purchase Order, Subscription Services are purchased as subscriptions for a defined quantity of users for a subscription term with a start date and a date of termination or automatic renewal. Additional users may be added during said subscription term at the same pricing as the underlying original subscription pricing for the currently active period, but only for the portion of that subscription term remaining at the time the new users are added. Any added users’ subscriptions will terminate on the same date as the underlying subscriptions. For example, if the current subscription term of a Subscriber is for one year and 10 users at $100 per user per month, and 6 months into the term the Subscriber wishes to add a single user, then the additional cost of that single user would be $100 for the subsequent six months.

5.2. Usage Limits. Subscription Services are subject to usage limits, including, for example, the quantities specified in Purchase Orders. Unless otherwise specified, (a) a quantity in a Purchase Order refers to a number of Users, and the Purchased Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Purchased Service. If Subscriber exceeds a contractual usage limit, My Office Apps may work with Subscriber to seek to reduce Subscriber’s usage so that it conforms to that limit. If, notwithstanding My Office Apps’ efforts, Subscriber is unable or unwilling to abide by a contractual usage limit, Subscriber will execute a new Purchase Order for additional quantities of the applicable Subscription Services promptly upon My Office Apps’ request, and/or pay any invoice for excess usage in accordance with Section 5.1 and 7.2 (Invoicing and Payment). In addition, Subscriber is entitled to reasonable storage capacity, to be defined in the applicable Purchase Order.

5.3. Subscriber’s Responsibilities. Subscriber shall: (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Subscriber’s Data and the means by which Subscriber acquired Subscriber’s Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Subscription Services, and notify My Office Apps promptly of any such unauthorized access or use, (d) use Subscription Services only in accordance with this Agreement and applicable laws and government regulations, and (e) comply with terms of service of Third Party Applications that Subscriber uses.

5.4. End User License, Usage Restrictions & Remedial Measures. My Office Apps hereby grants to Subscriber a limited, non-exclusive, non-transferable right to use the Subscription Services provided that Subscriber agrees to the following:

5.4.1. Usage Restrictions. Subscriber shall not: (a) make any Subscription Service available to, or use any Subscription Service for the benefit of, anyone other than Subscriber or Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Subscription Service, or include any Subscription Service in a service bureau or outsourcing offering; (c) use a Subscription Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Subscription Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses (“Malicious Code”); (e) interfere with or disrupt the integrity or performance of any Subscription Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Subscription Service or its related systems or networks; (g) permit direct or indirect access to or use of any Subscription Service in a way that circumvents a contractual usage limit; (h) copy a Subscription Service or any part, feature, function or user interface thereof; (i) frame or mirror any part of any Subscription Service, other than framing on Subscriber’s own intranets or otherwise for Subscriber’s own internal business purposes or as permitted in the Documentation (if any is provided); (j) access any Subscription Service or Content in order to build a competitive product or service; or (k) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Subscription Services.

5.4.2. Remedial Measures. My Office Apps may, at its sole and absolute discretion, without prior notice to Subscriber and without liability, reject, prevent, discontinue or suspend Subscriber’s account(s) and/or Subscriber’s use of the Subscription Service if, at its sole discretion, My Office Apps is of the opinion that Subscriber’s use does not meet My Office Apps’ specifications or guidelines, or which My Office Apps may consider to be inappropriate, illegal or harmful to its interests, or in violation of Section 5.4.1 of this Agreement. If My Office Apps exercises its absolute discretion under this Section 5.4.2, it shall have no obligation to refund any portion of Subscriber’s pre-paid subscriptions, if applicable. Without limiting or waiving any right or claim against Subscriber that My Office Apps may have under the law or this Agreement in relation to any inappropriate, illegal or harmful use, My Office Apps reserves the right to deduct any costs, damages or expenses that it may have incurred in relation to such inappropriate, illegal or harmful use from Subscriber’s unused pre-paid subscriptions, if any, or to claim the same from Subscriber by any other means.

6. THIRD PARTY PROVIDERS

6.1. Third Party Products and Subscription Services. Any use or implementation by Subscriber of Third Party products or services, including any exchange of data between Subscriber and any Third Party provider, is solely between Subscriber and the applicable Third Party provider pursuant to such documentation as may be applicable, including any Third Party Provider’s end user license agreement. My Office Apps does not warrant or support Third Party Applications or other Third Party products or services, regardless of whether they are designated as “certified” or otherwise, except as specified in a Purchase Order. My Office Apps does not endorse or assume any responsibility for any such Third Party Applications information, materials, products, or services.

6.2. Third Party Applications and Subscriber’s Data. If Subscriber installs or enables a Third Party Application for use with a Subscription Service, Subscriber hereby grants My Office Apps permission to allow the provider of that Third Party Application to access Subscriber’s Data as required for the interoperation of that Third Party Application with the Subscription Service. My Office Apps is not responsible for any disclosure, modification or deletion of Subscriber’s Data resulting from access by a Third Party Application.

6.3. Integration with Third Party Applications. The Subscription Services may contain features designed to interoperate with Third Party Applications. To use such features, Subscriber may be required to obtain access to Third Party Applications from their providers, and may be required to grant My Office Apps access to Subscriber’s account(s) on such Applications, and may incur additional fees. If the provider of a Third Party Application ceases to make it available for interoperation with the corresponding Service features on reasonable terms, My Office Apps may cease providing those Subscription Service features, but may, at My Office Apps’ sole discretion, provide Subscriber with credit for any prepaid fees related to the terminated Subscription Service feature.

7. FEES AND PAYMENT FOR PURCHASED SERVICES

7.1. Fees. Subscriber shall pay all fees specified in Purchase Orders; Except as otherwise specified herein: (i) fees are based on Subscription Services purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) quantities purchased cannot be reduced during the relevant subscription term.

7.2. Invoicing and Payment. Subscriber will provide My Office Apps with valid and updated credit card information, or with a completed Purchase Order or alternative document reasonably acceptable to My Office Apps that provides payment information. If Subscriber provides credit card information, Subscriber authorizes My Office Apps to charge such credit card for all Purchased Services listed in the Purchase Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). Such charges shall be made in advance either monthly, quarterly, or yearly unless a different billing frequency is stated in the applicable Purchase Order. Regardless of the billing frequency, the charges shall be made within 10 days prior to the commencement of the applicable billing period. If the Purchase Order specifies that payment will be by a method other than a credit card, My Office Apps will invoice Subscriber in advance and otherwise in accordance with the relevant Purchase Order. Unless otherwise stated in the Purchase Order, invoiced charges are due next 30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to My Office Apps and notifying My Office Apps of any changes to such information.

7.3. Overdue Charges. Invoiced payments not received by My Office Apps by the due date are subject to accrue late payment service charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or My Office Apps may condition future subscription renewals and Purchase Orders on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).

7.4. Suspension of Service and Acceleration. If any amount owing by Subscriber under this or any other agreement for My Office Apps’ Subscription Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Subscriber has authorized My Office Apps to charge to Subscriber’s credit card), My Office Apps may, without limiting My Office Apps’ other rights and remedies, accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend My Office Apps’ Subscription Services to Subscriber until such amounts are paid in full. My Office Apps will give Subscriber at least 10 days’ prior notice that Subscriber’s account is overdue, in accordance with Section 14.2 (Manner of Giving Notice), before suspending Subscription Services to Subscriber by reasons of this Section 7.4.

7.5. Payment Disputes. My Office Apps will not exercise My Office Apps’ rights under Section 7.3 (Overdue Charges) or 7.4 (Suspension of Service and Acceleration) above if Subscriber is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

7.6. Taxes. Subscriber is responsible for paying all taxes associated with the subscription to the Service. If My Office Apps has the legal obligation to pay or collect taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides My Office Apps with a valid tax exemption certificate authorized by the appropriate taxing authority.

8. PROPRIETARY RIGHTS AND LICENSES

8.1. Intellectual Property. Subscriber understands that Subscriber obtains no other rights whatsoever to the Subscription Services, Software and associated Documentation (if provided), or any related intellectual property rights of My Office Apps and My Office Apps’ licensors. Subscriber understands that My Office Apps and My Office Apps’ licensors own all intellectual property rights to the Subscription Services, Software and associated Documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items. Therefore, Subscriber’s right to use the Subscription Services, Software and associated Documentation (if provided) is a limited right to use or license, and not a transfer of ownership or title, and such license is limited to the terms and conditions of this Agreement.

8.2. License to Use Subscription Services. My Office Apps grants Subscriber a worldwide, limited-term license, under My Office Apps’ applicable intellectual property rights and licenses, to use the Subscription Services acquired by Subscriber pursuant to Purchase Orders, subject to those Purchase Orders and this Agreement.

8.3. Permission to Host Subscriber’s Data and Applications. Subscriber grants My Office Apps and My Office Apps’ Affiliates a worldwide, limited- term license to host, copy, transmit and display Subscriber’s Data, and any Third Party Applications and program code created by or for Subscriber using a Service, as necessary for My Office Apps to provide the Subscription Services in accordance with this Agreement. Subject to the limited licenses granted herein, My Office Apps acquires no right, title or interest from Subscriber or Subscriber’s licensors under this Agreement in or to Subscriber’s Data or any Third Party Application or program code.

8.4. Permission to Use Feedback. Subscriber grants My Office Apps and My Office Apps’ Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Subscription Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Subscriber or Users relating to the operation of the Subscription Services.

8.5. Assignment. Subscriber may not assign any of Subscriber’s rights or obligations hereunder, whether by operation of law or otherwise, without My Office Apps’ prior written consent.

8.6. Federal Government End Use Provisions. My Office Apps provides the Subscription Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Subscription Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).

9. CONFIDENTIALITY

9.1. Confidentiality: Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.

9.2. Protection of Confidential Information. Both Parties agree that they shall not use the Confidential Information of the other party except as authorized under this Agreement. For the avoidance of doubt, Subscriber Data as defined herein is not a part of Confidential Information, though the privacy and security provisions of 4.2 apply to Subscriber Data for Purchased Services. Except as explicitly authorized in writing by this Agreement or otherwise, each party will: (a) not use, for its own benefit or the benefit of any third party, the other party’s Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect its own Confidential Information of similar importance, to protect the other party’s Confidential Information from unauthorized use, disclosure and publication. Both parties acknowledge that the breach of this Section 9 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by the receiving party, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

9.3. Permitted Use of Subscriber’s Confidential Information. In the event that Subscriber Data or any information provided by Subscriber to My Office Apps is deemed Subscriber’s Confidential Information, Subscriber grants to My Office Apps a non-exclusive, royalty free right during Subscriber’s use of the Subscription Service, to use the Confidential Information for the sole purpose of performing My Office Apps’ obligations under this Agreement in accordance with the terms of this Agreement. Such rights shall include permission for My Office Apps to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 9.1.

9.4. Legal Compliance. My Office Apps maintains that its primary duty is to protect Subscriber Data to the extent the law allows. My Office Apps reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If My Office Apps is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then My Office Apps will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, My Office Apps may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

10. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

10.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

10.2. Warranties. My Office Apps warrants that (a) this Agreement, and the Purchase Orders accurately describe in all material respects the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber’s Data, (b) My Office Apps will not materially reduce the overall security of the Purchased Services during a subscription term, (c) subject to Section 6.3 (Integration with Third Party Applications), My Office Apps will not materially reduce the functionality of the Purchased Services during a subscription term, and (d) the Purchased Services and Content will not introduce Malicious Code into Subscriber’s systems. For any breach of an above warranty, Subscriber’s exclusive remedies are those described in Sections 13.3 (Termination) and 13.4 (Refund or Payment upon Termination).

10.3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

11. MUTUAL INDEMNIFICATION

11.1. Indemnification by My Office Apps. My Office Apps will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a court-approved settlement of, a claim against Subscriber, provided Subscriber (a) promptly give My Office Apps written notice of the claim, (b) give My Office Apps sole control of the defense and settlement of the claim (except that My Office Apps may not settle any claim against Subscriber unless it unconditionally releases Subscriber of all liability), and (c) give My Office Apps all reasonable assistance, at My Office Apps’ expense. If My Office Apps receive information about an infringement or misappropriation claim related to a Subscription Service, My Office Apps may in My Office Apps’ discretion and at no cost to Subscriber (i) modify the Service so that it no longer infringes or misappropriates, without breaching My Office Apps’ warranties under Section 10.2 (Warranties), (ii) obtain a license for Subscriber’s continued use of that Service in accordance with this Agreement, or (iii) terminate Subscriber’s subscriptions for that Service upon 30 days’ written notice and refund Subscriber any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a claim against Subscriber arises from Content, a Third Party Application or Subscriber’s breach of this Agreement.

11.2. Indemnification by Subscriber. Subscriber will defend My Office Apps against any claim, demand, suit or proceeding made or brought against My Office Apps by a third party alleging that Subscriber’s Data, or Subscriber’s use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify My Office Apps from any damages, attorney fees and costs finally awarded against My Office Apps as a result of, or for any amounts paid by My Office Apps under a court-approved settlement of, a Claim Against Us, provided My Office Apps (a) promptly give Subscriber written notice of the Claim Against Us, (b) give Subscriber sole control of the defense and settlement of the Claim Against My Office Apps (except that Subscriber may not settle any Claim Against My Office Apps unless it unconditionally releases My Office Apps of all liability), and (c) give Subscriber all reasonable assistance, at Subscriber’s expense.

11.3. Exclusive Remedy. This Section 11 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.

12. LIMITATION OF LIABILITY

12.1. LIMITATION OF LIABILITY. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY CLAIM OR SERIES OF RELATED CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT FOR PURCHASED SERVICES).

12.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

13. TERM AND TERMINATION

13.1. Term of Agreement. This Agreement commences on the date Subscriber first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

13.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Purchase Order. Except as otherwise specified in a Purchase Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless My Office Apps has given Subscriber written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

13.3. Termination. A party may terminate this Agreement 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 period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors upon presentation of documentation in support thereof.

13.4. Refund or Payment upon Termination. If this Agreement is terminated by Subscriber in accordance with Section 13.3 (Termination), My Office Apps will refund Subscriber an amount equal to 80% of any prepaid fees covering the remainder of the term of all currently in effect Purchase Orders after the effective date of termination. If this Agreement is terminated by My Office Apps in accordance with Section 13.3, Subscriber will pay any unpaid fees covering the remainder of the term of all Purchase Orders. In no event will termination relieve Subscriber of Subscriber’s obligation to pay any fees payable to My Office Apps for the period prior to the effective date of termination.

13.5. Subscriber’s Data Portability and Deletion. Upon request by Subscriber made within 30 days after the effective date of termination or expiration of this Agreement, My Office Apps will make Subscriber’s Data available to Subscriber for export or download. After that 30-day period, My Office Apps will have no obligation to maintain or provide Subscriber’s Data, and will thereafter delete or destroy all copies of Subscriber’s Data in Our systems or otherwise in My Office Apps’ possession or control, unless legally prohibited.

13.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Subscriber’s Data,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.

14. NOTICES, GOVERNING LAW AND JURISDICTION

14.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Subscriber shall be addressed to the relevant billing contact designated by Subscriber. All other notices to Subscriber shall be addressed to the relevant Subscription Services system administrator designated by Subscriber.

14.2. Governing Law and Jurisdiction. The law of California law shall govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. The parties further agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Orange, California. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement, or in the manner set forth in Section 14.1 of this Agreement for the giving of notice.

15. GENERAL PROVISIONS

15.1. Export Compliance. The Subscription Services, and other technology My Office Apps make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit Users to access or use any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

15.2. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Subscriber and My Office Apps regarding Subscriber’s use of Subscription Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Subscriber’s Purchase Order or in any other of Subscriber’s order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) the applicable Purchase Order.

15.3. Updates to this Agreement. My Office Apps reserves the right to alter the terms and conditions of this Agreement at any time. If My Office Apps updates this Agreement in any way, My Office Apps will post the updated terms on its website or will notify Subscriber using reasonable efforts by any means. If Subscriber renews the term, or purchases additional Subscription Services after the updated Agreement has been posted, Subscriber agrees to the updated terms unless Subscriber’s existing Agreement with My Office Apps expressly prohibits updating the Agreement by this mechanism.

15.4. Publicity. Subscriber hereby agrees that My Office Apps may, but is not obliged to, use Subscriber’s name and refer to Subscriber as a user of the Subscription Services in any publicity, press release, advertising or marketing material, throughout the world using any form of media. If Subscriber wishes to use or display My Office Apps trademarks or mention My Office Apps in any publication, website, press release or in any other manner, Subscriber must obtain the prior written consent of My Office Apps.

15.5. Privacy Policy. My Office Apps’ privacy policy is available for review on My Office Apps’ website at www.myofficeapps.com.

15.6. Force Majeure. My Office Apps has no responsibility for and is released from all contractual obligations and liability (e.g. for damages) if its performance of these Terms and Conditions is affected by an event of force majeure. For the purpose of this clause, the term “force majeure” means and includes any event which was not under the control of My Office Apps, or was not reasonably foreseeable, including, but not limited to any natural disaster such as thunderstorm, flood or storm, fire, national emergency, strike or equivalent labor action, or the unavailability of the Internet for reasons beyond the control of My Office Apps.

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