THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF NUMECENT'S CLOUDPAGING CDN. IF YOU REGISTER FOR A FREE PREVIEW OF CLOUDPAGING CDN, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE CLOUDPAGING CDN.
- "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
- "Application" means the PC Software which will be delivered through Cloudpaging CDN and provided to Users in accordance with the terms of this Agreement.
- "Agreement" means this Terms of Service document.
- "Beta Services" means the free trial or preview of the beta version of Cloudpaging CDN not made generally available to customers.
- "Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- "Cloudified or Cloudify" shall mean the process of converting a PC Software application with Numecent's tools into a proprietary Numecent format which format allows it to become deliverable from Cloudpaging CDN to a client device running the Cloudpaging Player, on demand and with optional license control.
- "Cloudpaging" shall mean the proprietary protocols and technologies which allow a cloudified application to be delivered to a client device on demand.
- "Documentation" means Numecent's online user guides, documentation, and help and training materials, as updated from time to time, accessible upon logging into the Cloudpaging CDN.
- "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
- "Marketplace" means an online directory, catalog or marketplace of applications that interoperate with Cloudpaging CDN.
- "Cloudpaging CDN" means the services Numecent makes available through this website, including this website, the Numecent cloudpaging platform, [the Numecent APIs or APIs of Numecent's partners] and other software or services offered by Numecent in connection with any of those.
- "Numecent" means Numecent Inc. or Numecent Limited and their subsidiaries or Affiliates involved in providing Cloudpaging CDN.
- "Order Form" means the online or other ordering document under which You purchase a subscription to Cloudpaging CDN or any other services provided to You by Numecent or any of its Affiliates. By submitting an Order Form hereunder, Your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- "PC Software" means computer applications software designed to be run on certain Windows operating systems, including, without limitation, Windows Vista 32 bit and 64 bit, Windows XP 32 bit, Windows7 32 bit and 64 bit and Windows8 64 bit.
- "User" means an individual who is authorized by You to use Cloudpaging CDN, for whom You have ordered Cloudpaging CDN, and to whom You (or Numecent at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
- "Your Data" means electronic data and information submitted by or for You for Cloudpaging CDN or collected and processed by or for You using Cloudpaging CDN, excluding Content and Applications.
2. Your Agreement with Numecent
2.1 If You have entered into or enter into a Software License Agreement with Numecent that Software License Agreement shall not apply to Cloudpaging CDN, and Cloudpaging CDN shall not be considered a service or product or part of any service or product under such Software License Agreement, unless otherwise expressly agreed to in writing by Numecent. Cloudpaging CDN is delivered from an infrastructure different from the infrastructure underlying other Numecent software, and any representations or commitments by Numecent regarding the security or availability of its services or products do not apply to Cloudpaging CDN or vice-versa.
2.2 You may not use Cloudpaging CDN if You are a person barred from receiving Cloudpaging CDN under the laws of the United States or other countries, including the country in which You are resident or from which You use Cloudpaging CDN. You affirm that You are over the age of 13, as Cloudpaging CDN are not intended for children under 13.2.3 You agree that Your purchase of a subscription to Cloudpaging CDN is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Numecent or any of its Affiliates regarding future functionality or features.
3. Your Account and Use of Cloudpaging CDN
3.1 You must provide accurate and complete registration information any time You register to use Cloudpaging CDN. You are responsible for the security of Your passwords and for any use of Your account. If You become aware of any unauthorized use of Your password or of Your account, You agree to notify Numecent immediately.
3.2 Your use of Cloudpaging CDN must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
3.3 You agree that neither You nor any Users to whom You serve web pages, including Applications via Cloudpaging CDN will (a) access (or attempt to access) the administrative interface of Cloudpaging CDN by any means other than through the interface that is provided by Numecent in connection with Cloudpaging CDN, unless You have been specifically allowed to do so in a separate written agreement with Numecent, or (b) engage in any activity that interferes with or disrupts Cloudpaging CDN (or the servers and networks which are connected to Cloudpaging CDN).
3.4 You may use Cloudpaging CDN only to cloudify and deploy Applications on the Numecent cloudpaging platform. You may not access Cloudpaging CDN for the purpose of bringing an intellectual property infringement claim against Numecent or for the purpose of creating a product or service competitive with Cloudpaging CDN.
4. Free Preview
4.1 If You register on our website for a free preview, Numecent will make Cloudpaging CDN available to You on a trial basis free of charge until the earlier of (a) the end of the free preview period for which You registered to use Cloudpaging CDN or (b) the start date of any Cloudpaging CDN subscriptions ordered by You for such service(s). 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.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO Cloudpaging CDN, DURING YOUR FREE PREVIEW WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION Cloudpaging CDN, OR EXPORT SUCH BEFORE THE END OF THE PREVIEW PERIOD. THE FREE PREVIEW OF Cloudpaging CDN PROVIDED BY NUMECENT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
4.2 Please review the Documentation during the trial period so that You become familiar with the features and functions of Cloudpaging CDN before You make Your purchase. If You are located in the United States, then during any free trial period Numecent may disclose anonymous data about Your use of Cloudpaging CDN ("Usage Statistics") to our service providers for the purpose of helping us improve Cloudpaging CDN. Any such disclosures of Usage Statistics to our service providers will not include Your identity.
5. Use of Services and Content
5.1 Unless otherwise provided in the applicable Order Form, (a) Cloudpaging CDN may only be purchased as a subscription, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
5.2 Your use of Cloudpaging CDN is subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to the number of published Applications per month and the Applications per User per month (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 Cloudpaging CDN. If You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of Cloudpaging CDN promptly upon our request, and/or pay any invoice for excess usage in accordance with Section 7.2.
5.3 You will (a) be responsible for Users' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Cloudpaging CDN, and notify Numecent promptly of any such unauthorized access or use, and (d) use Cloudpaging CDN only in accordance with the Documentation and applicable laws and government regulations.
5.4 You will not (a) make Cloudpaging CDN or any Content available to, or use Cloudpaging CDN or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease Cloudpaging CDN or Content, (c) use Cloudpaging CDN 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 Cloudpaging CDN to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of Cloudpaging CDN or third-party data contained therein, (f) attempt to gain unauthorized access to Cloudpaging CDN or Content or its related systems or networks, (g) permit direct or indirect access to or use of Cloudpaging CDN or Content in a way that circumvents a contractual usage limit, (h) copy Cloudpaging CDN or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of Cloudpaging CDN or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) access Cloudpaging CDN or Content in order to build a competitive product or service, or (l) reverse engineer Cloudpaging CDN.
6. Service Policies and Privacy
6.3 You agree that You will protect the privacy and legal rights of Users of Your Application. You must provide legally adequate privacy notices and protection for Users. If Users provide You with user names, passwords, or other login information or personal information, You must make the Users aware that the information will be available to Your Application and to Numecent.
7. Fees and Payment for Use of Cloudpaging CDN
7.1 Subject to the terms of this Agreement, Cloudpaging CDN may be provided to You without charge for a specified trial period. After the end of the trial period, You will be required to pay a fee for the continued use of Cloudpaging CDN. You can use the [tools] supplied to You by Numecent to cloudify Your Application for deployment on Cloudpaging CDN free of charge. If You choose to have Numecent cloudify Your Application, You agree to pay to Numecent the fees specified by Numecent..
7.2 For all purchased Cloudpaging CDN services, we will charge Your credit card on a monthly basis or at the interval indicated in Numecent's fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys' fees Numecent incurs collecting late amounts. To the fullest extent permitted by law, You waive all claims relating to charges unless claimed within sixty (60) days after the charge (this does not affect Your credit card issuer rights). Charges are solely based on Numecent's measurements of Your use of Cloudpaging CDN, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Numecent and only in the form of credit for Cloudpaging CDN. Nothing in this Agreement obligates Numecent to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that You provide to Numecent may be shared by Numecent with companies who work on Numecent's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Numecent and servicing Your account. Numecent may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Numecent shall not be liable for any use or disclosure of such information by such third parties. Numecent reserves the right to discontinue the provision of Cloudpaging CDN to You for any late payments.
7.3 You may not access Cloudpaging CDN in a manner intended to avoid incurring fees. Numecent may change its fees and payment policies for Cloudpaging CDN by notifying You at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Numecent may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
8. Content on Cloudpaging CDN and Take Down Obligations
8.1 You understand that all information (such as data files, written text, computer software or other information) to which You may have access as part of, or through Your use of, Cloudpaging CDN are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the Applications.
8.2 Numecent reserves the right (but shall have no obligation) to remove any or all Content from Cloudpaging CDN. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a takedown request from Numecent. In the event that You elect not to comply with a request from Numecent to take down certain Content, Numecent reserves the right to directly take down such Content or to disable Applications.
8.3 In the event that You become aware of any violation of the Acceptable Use Policy by a User of Applications, You shall immediately terminate such User's account on Your Application. Numecent reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
8.4 You agree that You are solely responsible for (and that Numecent has no responsibility to You or to any third party for) the Application or any Content that You create, transmit or display while using Cloudpaging CDN and for the consequences of Your actions (including any loss or damage which Numecent may suffer) by doing so.
8.5 You agree that Numecent has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of Cloudpaging CDN. You further acknowledge that You are solely responsible for securing and backing up Your Applications and any Content.
9. Proprietary Rights
9.1 You acknowledge and agree that Numecent (or a Numecent licensor) owns all legal right, title and interest in and to Cloudpaging CDN, including any intellectual property rights which subsist in Cloudpaging CDN (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
9.2 Except as provided in Section 11, Numecent acknowledges and agrees that it obtains no right, title or interest from You (or Your licensors) under this Agreement in or to any Content or Applications that You create, submit, transmit or display on, or through, Cloudpaging CDN, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless You have agreed otherwise in writing with Numecent, You agree that You are responsible for protecting and enforcing those rights and that Numecent has no obligation to do so on Your behalf.
9.3 You agree to notify Your Users of the Numecent End User License Agreement and You agree to provide Your Applications with the End User License Agreement. You also agree that You will not vary the terms of the End User License Agreement without the prior written consent of Numecent. Numecent may update its form of End User License Agreement from time to time upon reasonable advance written notice to You. You agree to notify Numecent if You become aware of a violation of the End User License Agreement by any of Your Users.
10. License from Numecent and Restrictions
10.1 Numecent gives You a personal, worldwide, royalty-free, non-exclusive, non-assignable and non-transferable (except as provided herein), with no right to sublicense, license to use the software provided to You by Numecent as part of Cloudpaging CDN. This license is for the sole purpose of enabling You to use and enjoy the benefit of Cloudpaging CDN as provided by Numecent, in the manner permitted by this Agreement.
10.2 You may not (and You may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of Cloudpaging CDN or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told that You may do so by Numecent, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by Cloudpaging CDN or any Applications running on Cloudpaging CDN.
10.3 Open source software licenses for components of Cloudpaging CDN released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede the Agreement, the open source licenses govern Your agreement with Numecent for the use of the components of Cloudpaging CDN released under an open source license.
10.4 Numecent hereby grants You a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Numecent trademarks and/or logos as provided here (the "Marks") for the sole purpose of promoting or advertising that You use Cloudpaging CDN and solely in accordance with Numecent's then current Trademark Usage Guidelines, which may be found here (or such other URL Numecent may provide from time to time). You agree that all goodwill generated through Your use of the Numecent Marks shall inure to the benefit of Numecent.
11. License from You
11.1 Numecent claims no ownership or control over any Content or Application. You and any collaborator to Your Application retain copyright and any other rights You already hold in the Content and/or Application, and You are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through Cloudpaging CDN You give Numecent a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Numecent to provide You with Cloudpaging CDN. Furthermore, by creating an Application through the use of Cloudpaging CDN, You give Numecent a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Numecent to provide You with Cloudpaging CDN.
11.2 By adding a collaborator to Your Application, You hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Cloudpaging CDN functionality or features for the sole purpose of collaborating on development of the Application(s).
11.3 You may choose to or we may invite You to submit comments or ideas about Cloudpaging CDN, including without limitation about how to improve Cloudpaging CDN or our products (the "Ideas"). By submitting any Idea, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place Numecent under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to You, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
11.4 You agree that Numecent, in its sole discretion, may use Your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to Your website) for the purpose of advertising or publicizing Your use of Cloudpaging CDN.
12. NON-NUMECENT PROVIDERS
12.1 We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, and implementation and other consulting services. Any acquisition by You of such non-Numecent products or services, and any exchange of data between You and any non-Numecent provider, is solely between You and the applicable non-Numecent provider. We do not warrant or support non-Numecent Applications or other non-Numecent products or services, whether or not they are designated by Numecent as "certified" or otherwise, except as specified in an Order Form.
12.2 If You install or enable a non-Numecent Application for use with Cloudpaging CDN, You grant Numecent permission to allow the provider of that non-Numecent Application to access Your Data as required for the interoperation of that non-Numecent Application with Cloudpaging CDN. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access to a non-Numecent Application.
12.3 Cloudpaging CDN may contain features designed to interoperate with non-Numecent Applications. To use such features, You may be required to obtain access to non-Numecent Applications from their providers, and may be required to grant Us access to Your account(s) on the non-Numecent Applications. If the provider of a non-Numecent Application ceases to make the non-Numecent Application available for interoperation with the corresponding Cloudpaging CDN features on reasonable terms, We may cease providing those Cloudpaging CDN features without entitling You to any refund, credit, or other compensation.
13.1 Numecent may, and You grant us permission to, make recommendations via Cloudpaging CDN for products or services we think may be of interest to You based on Your Application(s), Content, and/or use of Cloudpaging CDN. We will never make recommendations directly to Your Users.
14. Modification and Termination of Cloudpaging CDN
14.1 You acknowledge and agree that the form and nature of Cloudpaging CDN which Numecent provides may change from time to time without prior notice to You, subject to the terms in Section 7.3. Changes to the form and nature of Cloudpaging CDN will be effective with respect to all versions of Cloudpaging CDN; examples of changes to the form and nature of Cloudpaging CDN include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
14.2 You may terminate this Agreement at any time by canceling Your account on Cloudpaging CDN. You will not receive any refunds if You cancel Your account. If you do not notify Numecent that you intend to terminate this Agreement, your subscription to Cloudpaging CDN will automatically renew each month or if you choose to subscribe on an annual basis will automatically renew at the end of the initial one year period.
14.3 You agree that Numecent, in its sole discretion and for any or no reason, may terminate Your account or any part thereof. You agree that any termination of Your access to Cloudpaging CDN may be without prior notice, and You agree that Numecent will not be liable to You or any third party for such termination.
14.4 You are solely responsible for exporting Your Content and Application(s) from Cloudpaging CDN prior to termination of Your account for any reason, provided that if we terminate Your account, we will provide You a reasonable opportunity to retrieve Your Content and Application(s).
14.5 Upon any termination of Cloudpaging CDN or Your account this Agreement will also terminate, but Sections 7, 9, 11, , 14, 15, 16, 17, 19, 20 and 21 shall survive and continue to be effective after this Agreement is terminated.
15. EXCLUSION OF WARRANTIES
15.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF Cloudpaging CDN IS AT YOUR SOLE RISK AND THAT Cloudpaging CDN IS PROVIDED "AS IS" AND "AS AVAILABLE."
15.2 NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING Cloudpaging CDN, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF Cloudpaging CDN WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF Cloudpaging CDN WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH Cloudpaging CDN WILL BE ACCURATE.
15.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NUMECENT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NUMECENT 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. CONTENT AND BETA SERVICES ARE PROVIDED "AS IS" EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NUMECENT DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
16. LIMITATION OF LIABILITY
16.1 NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELEVE (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 YOU 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 YOUR PAYMENT OBLIGATIONS UNDER SECTION 7.
16.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ,BUT NOT LIMITED TO, LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
16.3 THE LIMITATIONS ON NUMECENT'S LIABILITY TO YOU IN PARAGRAPH 16.1 ABOVE SHALL APPLY WHETHER OR NOT NUMECENT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
17.1 You agree to hold harmless and indemnify Numecent, and its subsidiaries, Affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Numecent and Partners") from and against any third party claim arising from or in any way related to (a) Your breach of the Terms, (b) Your use of Cloudpaging CDN, (c) Your violation of applicable laws, rules or regulations in connection with Cloudpaging CDN, or (d) Your Content or Your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Numecent will provide You with written notice of such claim, suit or action.
17.2 You specifically acknowledge that Numecent is not indemnifying You, Your officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to a) Your breach of this Agreement, (b) Your use of Cloudpaging CDN, (c) Your violation of applicable laws, rules or regulations in connection with Cloudpaging CDN, or (d) Your Content or Your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
18. Copyright Policy
18.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Numecent's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in Your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
19. Other Content
19.1 Cloudpaging CDN may include hyperlinks to other web sites or content or resources or email content. Numecent may have no control over any web sites or resources which are provided by companies or persons other than Numecent.
19.2 You acknowledge and agree that Numecent is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
19.3 You acknowledge and agree that Numecent is not liable for any loss or damage which may be incurred by You or Your Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by You on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
20. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
20.1 Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on where You are domiciled.
|You are contracting with:||Notices should be addressed to:||The governing law is:||The courts having exclusive jurisdiction are:|
|Numecent Inc., a Delaware corporation||15635 Alton Parkway, Suite 100, Irvine, CA 92618. Attention: Chief Operating Officer||California and controlling United States federal law||Irvine, California, U.S.A.|
|Numecent Ltd., a company organized under the laws of England||Suite 4, One Sceptre House Hornbeam Square |
|English law||London England|
21. General Provisions
21.1 Cloudpaging CDN, Content, other technology that Numecent makes 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. You shall not permit Users to access or use Cloudpaging CDN or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
21.2 You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Numecent's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Numecent's Legal Department at firstname.lastname@example.org.
21.3 This Agreement is the entire agreement between You and Numecent regarding Your use of Cloudpaging CDN and Content 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 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order Form, and (3) the Documentation.
21.4 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
21.5 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
21.6 Any Content licensor of Numecent shall have the benefit of Numecent's rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
21.7 No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
21.8 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
21.9 You will pay on demand all of Numecent's reasonable attorney fees and other costs incurred by Numecent to collect any fees or charges due Numecent under this Agreement following Your breach of Section 7.2 of this Agreement.
Version: v2.2. Date: 08/31/2017