This Services Agreement ("Agreement") governs the provision by Aspose Pty Ltd. through its division Banckle-, a division of Aspose Pty Ltd.- ("Banckle") and the access and use by you, its customer ("You" or "Customer") of Banckle's Collaboration SaaS services ("Services"). BY CLICKING ON "I ACCEPT" WHEN SIGNING UP BANCKLE ACCOUNT TO USE THE SERVICES, YOU ACKNOWLEDGE HAVING REVIEWED AND ACCEPTED THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU SHOULD NOT BEGIN USE OF YOUR ACCOUNT OR BANCKLE'S SERVICES, AND YOU SHOULD IMMEDIATELY NOTIFY BANCKLE.
1.1. Definitions. For purposes of this Agreement, the following terms shall be defined as follows:
2. License and Restrictions
2.1 License: Subject to the terms of this Agreement, Banckle hereby grants You a limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Licensed Software and Service on Your computer, phone or PDA.
2.2 No Granting of Rights to Third Parties: You will not sell, assign, rent, lease, distribute, export, import, or otherwise grant rights to third parties in the Licensed Software and Service or any part thereof.
2.3 No Modifications: You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling etc. of the Licensed Software and Service or any part thereof except to the extent permitted by law. Under no circumstances you will undertake any act(s) of hacking of the Licensed Software and Service or cause, permit or authorize the same.
2.4 Third Parties: The Licensed Software and Service may be incorporated and may be allowed to incorporate itself, into software and other technology owned and controlled by any third party(ies) in lawful exercise of its/their rights. The product i.e. software and/or service, resulting from incorporation of third party software etc. integrated into the Licensed Software and Service or vice versa shall fall under the scope of this Agreement. Any and all other third party software or technology that you may receive together with the Licensed Software and Service shall be subject to your entering into a license or other agreement with the third party for lawful use of such third party software or technology. Under no circumstances is Banckle and or its affiliates shall be obliged to enter into an agreement with you with respect to such third party software or technology.
2.5 Exclusive Ownership: Any and all IP Rights in the Licensed Software and Service, the Banckle Website, the Banckle Online Material and the Banckle Promotional Materials are and shall remain the exclusive property of Banckle and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with Banckle's IP Rights. Any unauthorized use of Banckle's IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the Licensed Software and Service, but may be accessed through use of the Licensed Software and Service, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
2.6 No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any notices or indications or tamper with technological protection measures employed by Banckle for protection of its IP Rights, rights of ownership and any other rights, whether such notice or indications are affixed on, contained in or otherwise connected to any materials, unless otherwise agreed by Banckle.
3. API Terms
Customers may access their Banckle account data via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses Banckle Applications, is bound by the terms of this agreement plus the following specific terms:
3.1. You expressly understand and agree that Banckle shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Banckle has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
3.2 You will not use the API to send spam, unsolicited mail, bulk mail or take any actions that violate our account terms policy.
3.3. Abuse or excessively frequent requests to Banckle via the API may result in the temporary or permanent suspension of your account's access to the API. Banckle, in its sole discretion, will determine abuse or excessive usage of the API. Banckle will make a reasonable attempt via email to warn the account owner prior to suspension.
3.4. Banckle reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
4. Account Terms
4.1. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
4.2. You must provide a valid email address, and any other information requested in order to complete the signup process.
4.3. Your login may only be used by one person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as your Plan allows.
4.4. You will be responsible for maintaining the security of your account and password. Banckle cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
4.5. You will be responsible for all Content posted and activity that occurs under your account.
4.6. You will not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate the applicable laws as per this Agreement and any laws applicable to your use of the Licensed Software and Service in your jurisdiction of residence (including but not limited to copyright or trademark laws). This is without prejudice to clause 15.2 of this Agreement.
5. Email Account Terms
You promise to follow these rules:
If you violate any of these rules, then we may suspend or terminate your account.
5.1 We may view, copy, and internally distribute content from your Emails and account to help us identify problem accounts and find Members who violate these Terms or laws. Mailing Campaigns may be paused for manual review.
5.2 Please do not use Banckle products to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:
Some industries have higher-than-normal abuse complaints, which can in turn jeopardize the deliverability of our entire system. We cannot allow businesses that offer these types of services, products, or content:
5.3 You may not:
5.4 You may only use Banckle to send Emails to people and entities that either:
If you send Emails to a list and you get an unusual amount of SPAM complaints, ISPs will start blocking emails from your company. They’ll also ask Banckle to shut down your account.
5.5 You may only use our bandwidth for your Banckle Campaign emails. We provide image hosting only for your email campaigns, so you may not host images on our servers for anything other than your email campaigns (like a website). We may throttle your sending or connection through our API at our discretion.
6. Service Maintenance, Updates And Discontinuation.
6.1 For Licensed Software and Service: Banckle may, in its sole discretion, change, discontinue, or deprecate the Licensed Software and Service as a whole or change or remove features or functionality of the same from time to time. We will notify you of any material change to or discontinuation of the Licensed Software and Service by notice on the Website and/or the blog banckle.com/blog.
6.2 For APIs: Banckle reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice, but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
6.3 Discontinuation Processes: If for any reason Banckle decides to discontinue Services they will provide the following remedy to valid subscribers:
7. Public Beta Program
From time to time, Banckle may choose to offer new and/or updated features of the Service (the “Beta Features”) as part of a Public Beta Program (the “Program”) for the purpose of providing Banckle with feedback on the quality and usability of the Beta Features. You understand and agree that your participation in the Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Banckle, and that Banckle is not obligated to provide you with any Beta Features. Banckle may make such Beta Features available to Program participants by online registration or enrollment via the Service. You understand and agree that Banckle may change and/or terminate functions in the Beta Program. In the event such change is possible, you may not be able to migrate data created within the Beta Feature back to the earlier non-beta version. The Beta Features are provided on an “AS IS” and “AS AVAILABLE” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers and computers) connected thereto. You expressly acknowledge and agree that all use of the Beta Features is at your sole risk. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR PARTICIPATION IN THE BETA PROGRAM. Banckle may or may not provide you with technical and/or other support for the Beta Features. If support is provided it will be in addition to your normal support coverage for the Service and only available through the Program. You agree to abide by any support rules or policies that Banckle provides to you in order to receive any such support. Banckle reserves the right to modify the terms, conditions or policies of the Program (including ceasing the Program) at any time with or without notice, and may revoke your participation in the Program at any time. You acknowledge that Banckle has no obligation to provide a commercial version of the Beta Features, and that should such a commercial version be made available, it may have features or functionality different than that contained in the Beta Features. As part of the Program, Banckle will provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Beta Features. You agree that in the absence of a separate written agreement to the contrary, Banckle will be free to use any feedback you provide for any purpose.
8. Authorization to Access Customer's Computer
Customer acknowledges that by their use of the services Customer may be authorizing their users to, upon request, access and control their computer for the intended business purposes.
All access and control of a computer during a service session requires prior user consent. By accepting these terms, Customer hereby grants Banckle the right to connect to Customer's computer, take remote control of Customer's computer and change the settings on Customer's computer while performing the services. Customer may regain control of Customer's computer at any time while services are being utilized. Other than as set forth in the warranty section below, Customer agrees that Banckle has no responsibility or liability under any circumstances at any time for any loss or harm that may arise from or may be related to the services.
9. INTELLECTUAL PROPERTY
9.2 Rights Regarding Other Property. Customer owns the Content. Customer grants to Banckle a non-exclusive, worldwide right and license to modify, adapt, reproduce, display, perform, distribute, transmit, prepare derivative works from and otherwise use the Content-related process as may be reasonably necessary or appropriate for Banckle to perform its obligations hereunder. Notwithstanding the foregoing, all proprietary materials of Banckle and/or its licensors (including any software, processes and tools) and any other inventions, developments, discoveries, software, processes, tools or designs that are created, conceived of, developed, invented, delivered, provided or used by Banckle during the Term of this Agreement, including the Deployed Services, and any improvements or modifications thereof, (collectively, the "Banckle IP"), but excluding any Content, are, and shall at all times remain, the sole and exclusive property of Banckle, including, without limitation, all worldwide Intellectual Property Rights embodied in, related to or otherwise represented by the Banckle IP.
10. FEES AND PAYMENTS
10.1. Fees and Payment Terms. In consideration of the rights and obligations provided hereunder, Customer shall pay Banckle an annual charge on the Effective Date prior to providing the Deployed Services to End Users and on each anniversary of the Effective Date thereafter. Customer shall pay Banckle the then current applicable fees determined by Banckle corresponding to the Customer's selected plan. Customer shall pay any and all applicable value added or sales taxes or similar charges relating to the products and services provided under this Agreement or to payments made by Customer hereunder. All applicable fees are due immediately upon receipt by Customer of an invoice from Banckle and are non-refundable. Payment of all applicable fees is a pre-requisite to the renewal of the Term of this Agreement. All payments under this Agreement will be made in US Dollars.
10.2 Implied Upgradation: In any month for which you may have already paid the applicable fees, if you exceed your account usage to the extent that it requires upgradation of your account, you will be obliged to pay fees which are applicable to the upgraded level which covers such increase in usage on or before the Pay Date for the following month. Your liability to pay fees at the upgraded level of your account will remain applicable even if the Term ends before payment falls due against you. The applicable fees will be billed and charged in full every month until and unless you terminate your account.
10.3 Payments: All payments under this Agreement will be made in US Dollars. You agree that during the continuance of the Term, the Renewal Term, and/or as long as any balance payment is outstanding against you, at all times you shall provide Banckle with a valid credit card information and authorize Banckle to raise invoices and charge to such credit card all applicable fees monthly in advance which may accrue against your account. If the credit card, details whereof are provided by you, expires you shall provide information of another valid credit card. You undertake, represent and warrant that any and all charges billed to such credit card will not be rejected under any circumstances. In case such credit card belongs to a third party, you undertake, represent and warrant on behalf of the owner of such credit card that any and all charges billed to such credit card by Banckle will not be rejected under any circumstances.
10.4 Bank Charges etc.: Banckle will not be responsible for any additional bank fees, interest charges, finance charges, overdraft charges or other fees resulting from payment of applicable fees. Currency exchange settlements will be based on agreements between you and the provider of your credit card. Banckle will not give pro-rated refunds for unused time of Licensed Product and Service.
10.5 Late Payment: In the event of default on the part of the Customer, Banckle shall be entitled to use any and all remedies available under the law. If Banckle would incur any costs for recovering any unpaid amounts from the Customer, the Customer shall reimburse Banckle all such costs and expenses, including all reasonable attorneys' fees. Banckle reserves the right to offset amounts due from Customer against amounts otherwise due from Banckle to Customer or to suspend operation of the Customer's account/API hereunder until overdue accounts are paid in full by the Customer.
10.6 Under Usage: The Customer's usage limit of Licensed Software and Services shall be calculated on a monthly basis and if the Customer does not utilize the said limit in a month, it shall expire at the end of that particular month without any obligation on Banckle to reimburse for the part of Licensed Software and Services not utilized by the Customer.
10.7 Over Usage: If the usage of your account exceeds the limit prescribed for your chosen Plan in any way (i.e. if the lines of code you converted or the account space is over used) and by virtue of such increase your account stands upgraded as per Clause 8.2, you will have to pay the difference in the monthly payment before enabling you to use your account for for paid services. However, in such a case Banckle may choose to notify you for upgrade of the account for continued provision of Licensed Software and Services or may directly charge you cost of extra credits for covering over usage which will only be applicable to usage in that particular month.
11. WARRANTIES AND DISCLAIMER
11.1 Banckle Warranty. Banckle warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement; and (b) it owns or licenses all rights in and to Banckle IP necessary to perform its obligations hereunder.
11.2 Customer Warranty. Customer warrants that: (a) it has the power and authority to enter into and perform its obligations under this Agreement; (b) it owns or licenses all rights in and to the Content necessary to perform its obligations hereunder.
11.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 AND 7.2, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Banckle DOES NOT WARRANT THAT THE DEPLOYED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
11.4 DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, BANCKLE SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
12.1 Customer Indemnity. Customer shall indemnify, defend and hold harmless Banckle, its directors, officers, managers, members, shareholders, attorneys and agents from and against any and all third party claims, costs, demands, expenses, liabilities and losses, including reasonable attorneys' fees and expenses, arising from or related to: (a) any of the Marketing or Content, including, without limitation, any infringement upon or violation of the Intellectual Property Rights or other rights of any third party; (b) breach by Customer of Customer's warranties under Section 7.2; (c) any warranties or representations made by Customer or Customer's agents which differ from those provided by Banckle; or (d) the gross negligence or willful misconduct of Customer.
12.2 Banckle Indemnity. Banckle shall indemnify, defend and hold harmless Customer its directors, officers, managers, members, shareholders, attorneys and agents from and against any and all third party claims, costs, demands, expenses, liabilities and losses, including reasonable attorneys' fees and expenses, arising from or related to: (a) infringement upon or violation of the Intellectual Property Rights or other rights of any third party by the Banckle IP; (b) breach by Banckle of Banckle 's warranties under Section 7.1; or (c) the gross negligence or willful misconduct of Banckle.
12.3 Indemnification Procedures. In claiming any indemnification hereunder, the indemnified party shall: (a) promptly provide the indemnifying party with notice of any claim which the indemnified party believes falls within the scope of Section 8.1 or 8.2; and (b) reasonably cooperate with the indemnifying party, at the indemnifying party's expense, including providing all reasonably necessary information within its control for the indemnifying party to conduct a defense. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which shall not be unreasonably withheld.
12.4 Remedies for Infringement. Should any portion of the Banckle IP or its intended use with respect to the Deployed Services become, or in Banckle's opinion likely to become, the subject of a claim of infringement, violation or misappropriation of any Intellectual Property Rights of any third party, in addition to Banckle's indemnity obligations hereunder, Banckle may, at its sole option and expense, perform the following: (a) procure for Customer the right to continue using the Banckle IP under the terms of this Agreement; (b) replace or modify the Banckle IP so that it is non-infringing and substantially equivalent in function to the enjoined Banckle IP; or (c) terminate the Agreement.
12.5 Equitable Relief: The Customer acknowledges that unauthorized use of the Licensed Software and Services by it would cause irreparable loss and significant injury to Banckle ascertainment whereof in monetary terms is not be possible. At all times Banckle shall have the right to seek injunctions from the court of competent jurisdiction in addition to any other rights and remedies which may be available under the law.
13. LIMITATION OF LIABILITY
Banckle SHALL NOT BE LIABLE TO Customer OR ANY THIRD PARTY FOR: (A) ANY CONTENT OR DATA FURNISHED OR TRANSMITTED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL; (B) ANY INTERRUPTIONS OR IMPAIRMENTS IN SERVICE CAUSED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL; OR (C) ANY FAILURE OF HARDWARE, SOFTWARE OR CONTENT FURNISHED BY Customer, ITS REPRESENTATIVES OR ANY THIRD PARTY OUTSIDE Banckle's REASONABLE CONTROL. EXCEPT FOR EACH PARTY'S PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ARISING UNDER THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT, FOR ANY REASON, SHALL BE LIMITED TO THE FEES PAID HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CAUSE OF THE DAMAGES AROSE. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
14. TERM AND TERMINATION
14.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless otherwise terminated in accordance with the terms hereof, shall continue for such period as mentioned in the Plan chosen by the Customer ("Term"). The Term shall automatically renew for successive renewal terms ("Renewal Term") as per the Plan chosen by the Customer unless either party notifies the other in writing of its intention not to renew the Term at least seven (7) working days prior to the expiration of the then-current Term or Renewal Term, as the case may be
14.2 Termination for Cause. In addition to the other termination rights set forth in this Agreement, either party may terminate this Agreement upon written notice to the other party if the other party: (a) breaches any obligation and fails to cure such breach within thirty (30) days after receiving notice from the notifying Party; provided, however, that for any non-compliance with this Agreement or Customer compromises the security of the Licensed Software and Services or other systems, Banckle may terminate this Agreement before expiry of the Term if such termination is necessary for Banckle to avoid liability with fifteen (15) days written notice if Customer fails to cure such non-compliance within such period of time; (b) terminates or ceases operating its business in the normal course; (c) makes an assignment for the benefit of its creditors; or (d) becomes subject to any bankruptcy or insolvency proceeding under any applicable law, or becomes insolvent or subject to direct control by a trustee, receiver or similar authority, provided that such condition has not been cured within sixty (60) days.
14.3 Rights upon Termination; Survival. All provisions of this Agreement relating to confidentiality, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. Upon any expiration or termination of this Agreement: (a) Customer shall cease all use and/or distribution of the Licensed Software and Service; (b) return the Confidential Information and all related materials and copies thereof to Banckle; and (c) the due date of all monies due to Banckle shall automatically be accelerated so that such payments shall become due and payable on the effective date of termination, even if longer terms had been provided previously. In addition to the foregoing, Customer agrees that they shall not, following termination of this Agreement, act in any way to damage the reputation or goodwill of Banckle or any Licensed Software and Service. Except as otherwise expressly provided herein, upon any termination of this Agreement, Customer shall not be entitled to, and to the fullest extent permitted by law waives, any statutorily prescribed or other compensation, reimbursement or damages for loss of goodwill, clientele, prospective profits, investments or anticipated sales, commitments or business opportunities of any kind.
14.4 Removal of Content: You agree that in case of termination, Banckle will allow you to remove the Content seven (7) days of termination, whereafter, Banckle may remove any/all Content.
15.1 Confidential Information. "Confidential Information" means the terms of this Agreement, the Banckle IP and any non-public information that a disclosing party reasonably considers to be of a confidential, proprietary or trade secret including, but not limited to, financial, business and technical information, marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing. Confidential Information shall not include information which: (a) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) was rightfully known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party.
15.2 Obligations. Each party agrees to secure and protect the Confidential Information of the other party in a manner consistent with the maintenance of the other party's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature or importance, but in no event less than a reasonable degree of care. Neither party will use, sell, transfer, publish, disclose or otherwise make available to third parties any portion of the Confidential Information of the other party, except as necessary to perform its obligations under this Agreement or as expressly authorized in this Agreement or as required (and only to the extent required) to be disclosed pursuant to a duly authorized subpoena, court order, government authority or otherwise by law, in which event the party subject to same shall provide prompt written notice to the other party prior to such disclosure so that such party may seek a protective order or other appropriate remedy, if applicable. Each party acknowledges that breach of this Section 10 may cause irreparable harm to the disclosing party entitling the disclosing party to seek injunctive relief, among other remedies.
15.3 Return of Confidential Information. Upon any termination or expiration of this Agreement, or upon a request by either party hereto, all Confidential Information of one party in the possession or control of the other party shall be promptly returned or destroyed, at the other party's written instruction; provided, however, that each party shall be permitted to retain one (1) copy of such Confidential Information, as applicable, solely for archival purposes.
15.4 Non-disclosure of Agreement Terms. Neither party shall disclose the terms of this Agreement without the prior written consent of the other party, except that each party may: (a) make such disclosures as are necessary to comply with applicable laws, rules and regulations or as necessary to enforce this Agreement; and (b) disclose the terms of this Agreement to such party's auditors, attorneys, bankers or investment bankers as necessary for their rendition of services to such party, or to potential investors or purchasers in connection with their due diligence reviews of such party, provided that such persons agree to keep the information confidential subject to restrictions consistent with the restrictions set forth in this Section. The party to disclose the other party's Confidential Information must do the following: (a) gives written notice of the intended disclosure to the other party at least ten (10) days in advance of the date of disclosure or if ten (10) days is not feasible then as much notice as is possible under the circumstances; (b) upon request of the other party and at the requesting party's expense, the party to disclose the Confidential Information redacts portions of the Confidential Information to be disclosed to the extent permitted by applicable law; and (c) at the request and expense of the party whose Confidential Information is to be disclosed, submits a request to the court, administrative agency or governmental body that any portions of the Confidential Information that are identified by the other party receive confidential treatment to the fullest extent permitted under applicable law.
16. ADDITIONAL TERMS
16.1 Cooperation. Each party agrees to reasonably cooperate with the other for purposes of successfully accomplishing the objectives of this Agreement, which cooperation shall include providing reasonable access to persons, facilities or information of the other Party. Customer acknowledges and agrees that: (a) its failure to cooperate or timely perform its obligations under this Agreement may cause delays or interruptions in Banckle's timely performance of the Services or Deployed Services; and (b) Banckle shall have no liability whatsoever arising from or related to any failure of Customer to timely and fully perform such obligations.
16.2 Dispute Resolution. The parties shall exercise good faith efforts to promptly resolve any disputes arising out of or relating to this Agreement through discussions between designated representatives of the parties. Except for disputes for which injunctive or other equitable relief is sought to prevent the unauthorized use or disclosure of proprietary materials or information, the following procedures shall be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute.
16.3 Compliance With Applicable Laws. Customer shall be solely responsible for its compliance with all laws, statutes, ordinances and/or regulations including, without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and publicity as applicable to Customer's business and use of the Landing Page and Deployed Services. The parties agree that Banckle may in its sole discretion make changes to any of the Deployed Services from time to time as may be reasonably necessary or appropriate for Banckle to comply with applicable law. The parties further agree that if a change in applicable law makes the continued performance of this Agreement or any part thereof, in Banckle's sole reasonable discretion, unduly burdensome or unlawful, Banckle may terminate this Agreement upon notice to Customer and shall reimburse Customer a portion of the fees paid by Customer to Banckle, which amount shall be determined by Banckle in its reasonable discretion.
16.4 Publicity. Customer shall make commercially reasonable efforts to market and promote the Deployed Services. Customer grants Banckle the right to use Customer's name and logo in press releases, brochures, case studies, marketing materials, Banckle's website and similar materials indicating that Customer is a Customer of Banckle.
16.5 Use of Consultants or Contractors. Banckle may subcontract all or any portion of the services to be provided by Banckle under this Agreement to third parties (each, a "Subcontractor") upon notice to Customer. If Banckle uses a Subcontractor, Banckle shall remain responsible for the performance of any services delivered by Subcontractor hereunder, and Banckle shall make all payments to the Subcontractor for services performed for which Subcontractor was hired.
16.6 Notices. Any notice shall be in writing and delivered by hand, by electronic mail, mailed by overnight express (charges prepaid) or by certified mail with return receipt requested. Notices shall be deemed received when delivered. All notices shall be addressed as follows (or such other address as either party may specify in writing to the other party): (a) if to Banckle, to Banckle, a division of Aspose Pty Ltd.: (b) if to Customer, to the contact information provided to Banckle by Customer.
16.7 No Construction Against Drafter. If an ambiguity or question of intent arises with respect to any provision of this Agreement, the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.
17.1. Neither this Agreement nor any rights or obligations hereunder may be sold, assigned or otherwise transferred by either party without the prior written consent of the other party, provided that each party may assign, upon prior written notice to the other party, its rights and obligations under this Agreement in connection with the transfer or sale of all or substantially all of its business to which this Agreement relates, or in the event of its merger, consolidation, change in control or similar transaction. Any attempted transfer in violation of the foregoing provision shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties' successors and assigns.
17.2. This Agreement is governed by the laws of the This Agreement is made in the State of New South Wales, Australia and shall be governed in accordance with the laws of the New South Wales, Australia. Any lawsuit filed regarding this Agreement shall be filed in New South Wales, Australia. The parties further agree that the law of New South Wales, Australia shall apply in such a lawsuit. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
17.3. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain enforceable.
17.4. A waiver of any breach of this Agreement shall not constitute a waiver of any other breach or covenant of this Agreement, current or future. A waiver shall not be effective unless made in writing.
17.5. In the event of any action to enforce the terms of this Agreement, the prevailing Party shall be entitled to its reasonable attorney fees and costs.
17.6. Neither party shall be liable for any delay or failure due to force majeure causes, including acts of God, natural disaster, labor disputes, changes in government policy/law, riots, war, epidemics, acts or omissions of vendors or suppliers to the extent such acts or omission are not reasonably foreseeable, transportation difficulties, disruptions caused by the Internet or service providers or other occurrences which are beyond its reasonable control. This provision shall not apply to any of Customer's payment obligations.
17.7. During the Term of this Agreement and for one (1) year thereafter, neither party will solicit the employees or representatives of the other party, although either party may hire a candidate who responds to a general advertisement or solicitation (in any medium).
17.8. This Agreement is solely for the benefit of the Parties and not for the benefit of any third parties.
17.9. Banckle and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Customer.
17.10. This Agreement contains the entire understanding between the Parties and supersedes all prior representations or agreements, whether oral or written. This Agreement may only be changed by a mutually executed document.
17.11. This Agreement may be signed in counterparts and, when so signed, will constitute a single Agreement. Delivery of an executed counterpart of this Agreement by facsimile shall be equally effective as delivery of a manually executed counterpart of this Agreement.
17.12. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of an agreement shall not apply to this Agreement.
17.13. To the extent of any inconsistency between the terms of this Agreement and the terms of the Exhibits, the terms of this Agreement shall control.
Banckle AND Customer HAVE EACH READ AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES.