Hosted Services Subscription Agreement
This Hosted Services Subscription Agreement (this "Agreement") is a legal agreement between you (either an individual or an entity on whose behalf you are acting) ("Customer") and Smart Bear Inc. or one of its affiliated entities ("SMARTBEAR") with offices at 100 Cummings Center, Suite 234N, Beverly, MA 01915 establishing terms and conditions under which Customer may access and use SMARTBEAR's software as a service.
BEFORE YOU CLICK ON THE "I ACCEPT" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON OR USING THE SOFTWARE IN ANY MANNER, YOU (AS CUSTOMER) ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON BEHALF OF CUSTOMER. IF YOU (AS CUSTOMER) DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "I DO NOT ACCEPT" BUTTON AND YOU (AS CUSTOMER) MAY NOT USE SMARTBEAR'S ONLINE SERVICES OR ACCESS THE SMARTBEAR SOFTWARE.
1. Hosted Services
1.1 Grant: Upon Customer's payment of the service fees required by SMARTBEAR's web site in connection with this Agreement and subject to the terms and conditions of, this Agreement, SMARTBEAR grants Customer a non-exclusive, non-transferable (except as provided in Section 9.3), non-sublicensable limited license to access and use the SMARTBEAR software program(s) and third party software programs supplied by SMARTBEAR and corresponding documentation, online or electronic documentation, and, if any, associated media and materials (collectively, the "Hosted Services") solely for Customer's internal business purposes during the term of this Agreement. Customer may access and use the Hosted Services as permitted by the subscription type purchased as described below. The subscription type purchased is specified by Customer in connection with the ordering of the Hosted Services via SMARTBEAR's web site (the "Order Form").
1.2 Subscription Types
1.2.1 Named User Subscription: Under the terms of a Named User Subscription, a fixed number of employees or authorized contractors of Customer identified to SMARTBEAR are licensed to access and use the Hosted Services ("Named Users"). A Named User Subscription must be for a sufficient number of users to account for each separate user (a human being, not a machine) that accesses the Hosted Services. The number of licensed Named Users is set forth on the Order Form.
1.2.2 Concurrent User Subscription: Under the terms of a Concurrent User Subscription, the Hosted Services may be used by a number of employees or authorized contractors of Customer at the same time up to the number of concurrent seats licensed ("Concurrent Users"). The number of Customer's users of the Hosted Services at any one time may not exceed the number of authorized Concurrent Users. A user is considered active and counts toward the number of Concurrent Users if he or she has accessed or used the Hosted Services in the past two (2) hours and has not explicitly logged out. The number of licensed Concurrent Users is set forth on the Order Form.
1.2.3 Free Subscription: Certain services may be made available to Customer at no charge on an ongoing basis on the Website (the "Free Services"). All Free Services are provided "AS IS" and "AS AVAILABLE" and may be terminated by SMARTBEAR at any time, notwithstanding anything to the contrary herein.
1.2.4 Trial Subscription: If Customer has not obtained any of the preceding subscriptions, then this Agreement is for a Trial Subscription. A Trial Subscription may be used only to review, demonstrate and evaluate the Hosted Services for a limited time period or limited number of uses. The Hosted Services licensed under a Trial Subscription will cease operating after a predetermined amount of time or number of uses based on an internal mechanism within the Hosted Services.
1.3 Subscription Fees: Customer shall pay the fees set forth in the Order Form (the "Subscription Fees") for the rights granted hereunder. Subscription Fees are due immediately upon Customer's order for the Hosted Services and upon each annual renewal of such Hosted Services, unless otherwise expressly provided on the Website. Late payments shall bear interest at a rate of one and one-half percent (1.5%) per month.
1.4 User Limitations: Customer shall allow only its employees or authorized contractors to access and use the Hosted Services, subject in all respects to the limitations of the applicable subscription set forth in Section 1.2 above (each authorized user is referred to herein as a "User"). Customer shall comply, and shall ensure that its Users shall comply, with the terms and conditions of this Agreement. Customer shall not permit its Users to use the Hosted Services or to access the Hosted Services other than as expressly provided herein. A breach by any User of any provision of this Agreement shall constitute a breach by Customer. At SMARTBEAR's request, Customer will promptly terminate a User's access to the Hosted Service if SMARTBEAR reasonably believes that such individual is in breach of system security or is otherwise misusing or abusing the Hosted Services or access to the Hosted Services. SMARTBEAR reserves the right to suspend or terminate any part or portion of the Hosted Services if it reasonably believes that Customer is misusing or abusing such Hosted Services or is otherwise in breach of this Agreement. Nothing in this Section 1.4 imposes on SMARTBEAR an obligation to supervise or monitor use of the Hosted Services. Customer represents and warrants that it shall not use, or permit its Users to use the Hosted Services, in ways that violate laws, infringe or violate the rights of others including, but not limited to third party intellectual property rights, privacy, and publicity rights, or interfere with other users of SMARTBEAR's services.
1.5 Login Credentials: SMARTBEAR will provide each Customer with an administrator account, which Customer may use to assign an appropriate amount of usernames and passwords ("Login Credentials") to each individual User within the scope of the subscription purchased by Customer. Customer's assigned username and passwords shall be maintained as confidential by Customer and shall not be distributed or disclosed. It is Customer's responsibility to immediately terminate a username and/or password upon its knowledge or belief that such username and/or password is or may be subject to a breach of this Agreement, including without limitation a breach of confidentiality. Customer shall be responsible for all use of the Hosted Services in connection with the Login Credentials.
1.6 Customer Equipment: Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including web browser and internet access) needed to use and access the Hosted Services in accordance with the technical requirements in SMARTBEAR's documentation. Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Hosted Services.
1.7 Customer Data: Customer's use of the Hosted Services will involve submission of Customer's data to SMARTBEAR via methods described in the Hosted Services ("Customer Data"). Customer grants to SMARTBEAR the right to access and use the Customer Data for the purposes of providing the Hosted Services and to confirm Customer's compliance with the terms and conditions of this Agreement. Customer covenants that it will only supply Customer Data that Customer has the right to supply for the purposes set forth in this Agreement. Customer agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Hosted Services.
1.9 Third Party Software: The Hosted Services may interoperate or communicate with third party software or on-line services. SMARTBEAR is not responsible for any third party software or services accessed or used by Customer or its Users. Customer and its Users are solely responsible for obtaining all necessary rights to such third party software or services.
2. Subscription Restrictions
2.1 No Reverse Engineering; No Service Bureau: Customer shall not, and shall not permit any person or entity to: (a) use the Hosted Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (b) alter, enhance, or make derivative works of the Hosted Services; (c) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Hosted Services or any software component of the Hosted Services; (d) use, or allow the use of, the Hosted Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; (e) introduce in or to the Hosted Services any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Hosted Services, alter, damage or delete any data or retrieve or record information about the Hosted Services or its uses; and/or (f) act in a fraudulent, tortious malicious, or negligent manner when using the Hosted Services. Customer will promptly notify SMARTBEAR of any complaints or objections to Customer's use of the Hosted Services made by a third party.
2.2 Trial Subscriptions: For a Trial Subscription, in addition to the other restrictions set forth herein, Customer shall not (a) disclose the results of software performance benchmarks obtained using the Hosted Services licensed under a Trial Subscription to any third party without SMARTBEAR's prior written consent; (b) use the Hosted Services licensed under a Trial Subscription for any application deployment or ultimate production purpose; (c) use the Hosted Services licensed under a Trial Subscription for a purpose other than the sole purpose of determining whether to purchase a subscription to the Hosted Services; (d) disclose or transmit to any other party any password or Login Credentials that SMARTBEAR provides Customer to register a Trial License; and/or (e) access or use the Hosted Services licensed under a Trial Subscription for any commercial purpose.
2.3 Concurrent User Licenses: If and only if the Hosted Services were purchased with a Concurrent User Subscription: Customer may not permit the number of Users simultaneously having access to the Hosted Services, its functionality or information, or content displayed or delivered using the Hosted Services, to exceed such number of Concurrent Users permitted by the subscription to the Hosted Services purchased by Customer.
2.4 Named User Licenses: If and only if the Hosted Services was purchased with a Named User Subscription: Customer may not permit a person other than a person authorized by Customer (with each such authorization designated to a unique individual (an "Authorized Person") and with the aggregate number of such Authorized Persons not exceeding the number permitted within the scope of the subscription to the Hosted Services purchased by Customer) to access the Hosted Services to create, modify, store, convert, manage, or display any information.
3. Support: SMARTBEAR will provide technical assistance by email or telephone during the term of this Agreement. All technical assistance shall be performed between 8:00 a.m. and 5:00 p.m., Mountain Time, Monday through Friday, holidays excluded. SMARTBEAR's technical assistance is governed also by SMARTBEAR policies and programs described in online documentation and/or other SMARTBEAR-provided materials. All technical assistance is subject to Customer complying with the documentation for the Hosted Services and the terms and conditions of this Agreement.
4.1 Confidential Information: Both parties acknowledge that either may receive Confidential Information (as defined below) from the other during the Term of this Agreement. The receiving party shall disclose the other party's Confidential Information only to persons within the receiving party having the need to know the information for the purpose of this Agreement. The receiving party (as defined below) shall treat Confidential Information as it does its own valuable and sensitive information of a similar nature, and, in any event, with not less than reasonable care. Upon the disclosing party's written request, the receiving party shall return or certify the destruction of all Confidential Information. As used herein, "Confidential Information" shall mean any and all information or proprietary materials (in every form and media) not generally known to the public and which has been or is hereafter disclosed or made available by either party (the "disclosing party") to the other (the "receiving party") in connection with the efforts contemplated hereunder, including (i) all trade secrets, (ii) the Hosted Services and any portion thereof and (iii) Customer Data.
4.2 Exceptions: The obligations of either party under Section 4.1 will not apply to information that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) is independently developed by the receiving party without regard to the Confidential Information of the other party. Further, the receiving party may disclose Confidential Information to the extent such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party's cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.
4.3 Disclosure Compelled: In the event that Customer is required by a duly authorized government entity to disclose the Confidential Information, Customer shall give SMARTBEAR prompt notice of such requirement, make reasonable efforts to disclose the Confidential Information pursuant to a protective order or confidentiality agreement, and cooperate in all respects with SMARTBEAR in its efforts in connection therewith.
4.4 Equitable Remedies: Failure on the part of the receiving party to abide by this Section 4 shall cause the disclosing party irreparable harm for which damages, although available, may not be an adequate remedy at law. Accordingly, the disclosing party has the right to seek an injunction to prevent any violations or attempted violations of this Section 4 and seek to recover court costs and reasonable attorney fees incurred by the disclosing party in the enforcement of this Section.
5. Limited Warranty and Disclaimer
5.1 Warranty: SMARTBEAR warrants that, during the term of this Agreement, the Hosted Service will, under normal operation as set forth in SMARTBEAR's help screens and when used as authorized herein, perform substantially in accordance with the documentation provided to Customer. SMARTBEAR's sole obligation and Customer's exclusive remedy for any breach of this warranty is limited to (i) reperformance or replacement of the Hosted Services by SMARTBEAR, or (ii) in the event that SMARTBEAR is unable to reperform or replace the specific non-conforming Hosted Service after using its commercially reasonable efforts, a payment by SMARTBEAR of an amount equal to the Usage Fee paid by Customer for such non-conforming Hosted Service for the quarter in which the Hosted Service was non-conforming. SMARTBEAR's obligations hereunder for breach of the warranty are conditioned upon Customer notifying SMARTBEAR of the breach in writing within forty eight (48) hours after the breach occurs, and providing SMARTBEAR with sufficient documentation of such non-conformity to enable SMARTBEAR to reproduce and verify the same.
5.2 Customer Risk: Customer acknowledges that any reports, data or information generated, obtained or acquired through the use of the Hosted Services is at Customer's sole risk and discretion. SMARTBEAR and its suppliers are not liable or responsible for any results generated through the use of the Hosted Services. NEITHER SMARTBEAR NOR ITS SUPPLIERS WARRANT OR REPRESENT THAT THE HOSTED SERVICE OR ACCESS TO THE HOSTED SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE. OPERATION OF THE HOSTED SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF SMARTBEAR'S AND ITS LICENSORS' CONTROL.
5.3 Disclaimer: EXCEPT AS PROVIDED IN THIS SECTION 5, SMARTBEAR AND ITS SUPPLIERS MAKE AND GIVE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND GUARANTIES, WHETHER ORAL OR WRITTEN, IMPLIED OR STATUTORY, WITH REGARD TO THE HOSTED SERVICES AND ANY COMPONENTS THEREOF, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
5.4 Service Level Agreement: Where the Hosted Services are being provided pursuant to a fully paid, current subscription, SMARTBEAR's goal is to maintain availability of the Hosted Services 99.9% of the time between the hours of 8am ET and 11pm ET ("Key Operating Hours"). Unavailability is measured over all Key Operating Hours in a calendar month and is based on unavailability time during that month. Unavailability exists when both Customer and SMARTBEAR are unable to access and use the features and functionality the Hosted Services in material respects. Unavailability is measured from the time a trouble ticket is created for the Customer to the time we confirm that the affected Hosted Services is available to transmit and receive data. If SMARTBEAR fails to meet the availability goal and the Customer provides AutomatedQA with a written request within five (5) business days of the last day of the month in which such failure occurred, we will provide a service credit to the Customer's account equal to one-thirtieth (1/30th) of the Customer's Monthly Service Charges for the affected Service for each cumulative sixty (60) minute period of unavailability or failure during the Key Operating Hours in the applicable month, up to a maximum of one-half (1/2) of the total Monthly Service Charges charged by SMARTBEAR to Customer during the applicable month for the affected Service. Service credits will not be available to Customer in cases where (a) the Hosted Services are unavailable as a result of the acts or omissions of Customer or its employees, contractors, agents or end-users; (b) the failure or malfunction of equipment, network, applications or systems not owned or directly controlled by SMARTBEAR; (c) circumstances or causes beyond the control of SMARTBEAR, including, without limitation, events of force majeure and third-party attacks on the SMARTBEAR network (such as ping and denial of service attacks); (d) scheduled maintenance with prior notice posted in the on-line bulletin; or (e) urgent maintenance with notice provided as soon as is commercially practicable under the circumstances. Any service credits provided under this Section 5.4 shall be SMARTBEAR's sole and exclusive liability, and Customer's sole and exclusive remedy, for unavailability of the Hosted Services.
5.5 Hazardous Applications: The Hosted Services are specifically not developed or licensed for help in managing nuclear, aviation, mass transit, and medical applications or in any other inherently dangerous application. Customer agrees that SMARTBEAR and its suppliers shall not be liable for any claims or damages arising from Customer's use of the Hosted Services for managing such applications or facilities used in connection with such applications. Customer agrees to indemnify and hold SMARTBEAR harmless from any claims for losses, costs, damages or liability arising out of in connection with its use of the Hosted Services in managing such applications.
5.6 Restricted Person: Customer hereby warrants that Customer is not a Restricted Person. For purposes of this Agreement, Customer is a Restricted Person if Customer or any officer, director, or controlling shareholder of Customer is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If Customer becomes a Restricted Person during the term of this Agreement, Customer shall notify SMARTBEAR within twenty-four (24) hours, and SMARTBEAR shall have the right to terminate any further obligations to Customer, effective immediately and with no further liability to Customer, but without prejudice to Customer's outstanding obligations to SMARTBEAR. Customer agrees that Customer shall not utilize the Hosted Services to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. Customer may not remove or export from the United States or allow the export or re-export of the Hosted Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
6. LIMITATION OF LIABILITY
6.1 Disclaimer: NEITHER SMARTBEAR NOR ITS SUPPLIERS OR AFFILIATES SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), RELATING TO THIS AGREEMENT OR ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SMARTBEAR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
6.2 Limitation: SMARTBEAR'S AND ITS SUPPLIERS' AND AFFILIATES' TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL CAUSES WHATSOEVER WILL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE HOSTED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM, LESS ANY AMOUNTS PAID BY SMARTBEAR FOR ANY PRIOR CLAIMS HEREUNDER.
6.3 Fundamental Elements: The limitations set forth in Sections 5 and 6 are fundamental elements of the basis of the agreement between SMARTBEAR and Customer. SMARTBEAR would not be able to provide the Hosted Services on an economic basis without such limitations. Such limitations inure to the benefit of SMARTBEAR and its licensors and service providers.
7.1 Customer Indemnity: Customer shall indemnify and hold SMARTBEAR, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all liabilities, losses, costs, expenses, (including reasonable attorney's fees), and damages arising from (i) the use of the Hosted Services by Customer, or any of its Users, whether or not Customer has knowledge of or has authorized any unpermitted access or use; (ii) any information or results obtained through use of the Hosted Services or access to Hosted Services; or (iii) any negligent acts, omissions, or willful misconduct by Customer and/or Users, or by Customer's and/or Users use of the Hosted Services and any breach of this Agreement.
7.2 SMARTBEAR Indemnity: SMARTBEAR shall indemnify and hold Customer, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all liabilities, losses, costs, expenses, (including reasonable attorney's fees), and damages relating to or arising from a third party claim alleging that the Hosted Services directly infringe a copyright, a U.S. patent issued as of the Effective Date or a trademark of any party.
7.3 Indemnification Procedures: A party's obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such claim, action or proceeding, (ii) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party's request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.
8.1 Ownership of the Hosted Services: Customer acknowledges that the structure, organization, and code used in conjunction with the Hosted Services are proprietary to SMARTBEAR and/or SMARTBEAR's supplier(s), and that SMARTBEAR and/or its suppliers retain exclusive ownership of the Hosted Services, documentation, and any other Intellectual Property Rights relating to the Hosted Services, including all modifications, enhancements, derivatives, and other software and materials relating to the Hosted Services, and all copies thereof. Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Hosted Services including any modifications, enhancements, derivatives, and other software and materials provided hereunder by SMARTBEAR or copies thereof to others in violation of this Agreement. Customer shall not remove any proprietary, copyright, trademark, or service mark legend from any Hosted Services including any modifications, enhancements, derivatives, and other materials provided by SMARTBEAR.
8.2 Feedback: With respect to any suggestions or technical information Customer provides to SMARTBEAR in connection with this Agreement and/or the Hosted Services, SMARTBEAR may use such information for its business purposes without restriction or obligation to Customer, including for product support and development.
8.3 Trademarks: "AutomatedQA", "Smart Bear", "Software Planner" and other trademarks contained in the Hosted Services are trademarks or registered trademarks of AutomatedQA Corporation in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Customer may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Hosted Services. This Agreement does not authorize Customer to use SMARTBEAR's or its licensors' names or any of their respective trademarks.
9. Term and Termination
9.1 Term: This Agreement shall commence on the date on which Customer pays for the applicable subscription and shall continue until the one (1) year anniversary of such date (the "Initial Term"), unless extended pursuant to this Section 9.1 of sooner terminated pursuant to Section 9.2. This Agreement shall automatically renew for successive one (1) year periods (each, a "Renewal Term") upon the end of the Initial Term and each one (1) year Renewal Term, unless either party delivers notice of non-renewal to the other party at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term.
9.2 Termination: Each party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach, provided, however, that the SMARTBEAR may terminate this Agreement upon fifteen (15) days notice in the event Customer fails to pay Usage Fees when due. Furthermore, each party may terminate this Agreement upon written notice if the other party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within sixty (60) days, or makes an assignment for the benefit or its creditors. Notwithstanding anything herein to the contrary, in the event of termination under this Section 9.2 all amounts due under this Agreement shall be paid within ten (10) days of such termination.
9.3 Termination at Will: SMARTBEAR may terminate this Agreement or the Hosted Services, disable Customer's account or put Customer's account on inactive status, in each case at any time with or without cause, and with or without notice. SMARTBEAR shall have no liability to Customer or any third party because of such termination or action, except for a return of a pro-rated portion of any pre-paid fees applicable to the period after such termination.
9.4 Remedies: Termination will be in addition to and not in lieu of any equitable remedies available to SMARTBEAR. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other arising from or incident to any suspension or termination of this Agreement by such party or any expiration hereof which complies with the terms of the Agreement, whether or not such party is aware of any such damage, loss or expenses.
9.5 Survival. Sections 1.8, 1.9, 2.1, 3.3, 3.4, 4, 5, 6, 7, 8, 9 and 10 shall survive the termination of this Agreement according to their terms.
10.1 Governing Law: This Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to principles of conflict of laws. Customer hereby consents to the exclusive jurisdiction and venue of the state courts sitting in the Commonwealth of Massachusetts or the federal courts in the Commonwealth of Massachusetts to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods or UCITA.
10.2 Entire Agreement; Waivers; Headings: This Agreement, together with the Order Form, contains the complete agreement between Customer and SMARTBEAR with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. Customer agrees that any varying or additional terms contained in any purchase order or other written notification or document issued by Customer in relation to the Hosted Services licensed hereunder shall be of no effect. The failure or delay of SMARTBEAR to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. The headings of this Agreement are for convenience only and shall not have any force or effect.
10.3 Assignment: Customer may not assign or transfer this Agreement in whole or in part to any third party. This Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. No provision of this Agreement shall be deemed to confer upon any person any remedy, claim, liability, reimbursement, cause of action, or other right whatsoever.
10.4 Independent Contractor: SMARTBEAR and Customer are not partners or in a joint venture; neither party is the agent, representative nor employee of the other party; and nothing in this Agreement will be construed to create any relationship between them other than an independent contractor relationship. Neither party will have any responsibility nor liability for the actions of the other party except as expressly provided herein. Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. Customer's employees are not and shall not be deemed to be employees of SMARTBEAR. Customer shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen's compensation and any similar taxes associated with employment of Customer's personnel.
10.5 Headings; Severability: The headings and captions of the sections and paragraphs of this Agreement shall be for convenience only. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
10.6 Reference: Customer agrees to be identified as a customer of SMARTBEAR and agree that SMARTBEAR may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer's business in SMARTBEAR's marketing materials and web site. Customer hereby grants SMARTBEAR a license to use Customer's name and any of Customer's trade names and trademarks solely in connection with the rights granted to SMARTBEAR pursuant to this marketing section.
10.7 Force Majeure: Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, natural disaster, utilities and communications failures, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non performing party ("Force Majeure"), provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible.
10.8 Notices to SMARTBEAR: SMARTBEAR's address for notices is: AutomatedQA Corporation, 100 Cummings Center, Suite 234N, Beverly, MA 01915. Customer may contact SMARTBEAR for informal purposes by phone (978.236.7900) or email at firstname.lastname@example.org.