6FUSION USA, INC. END USER TERMS OF SERVICE
PLEASE READ THESE 6FUSION USA, INC. (“6FUSION”) END USER TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY. BY CLICKING THE “I AGREE TO THIS AGREEMENT” BUTTON AS PART OF THE REGISTRATION PROCESS ON THE WEB SITE OWNED AND OPERATED BY 6FUSION AT WWW.6FUSION.COM, YOU, AS THE END USER (“END USER”), ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE 6FUSION SOFTWARE OR 6FUSION PLATFORM, AND YOU MAY NOT PURCHASE ANY SUPPLIER SERVICES FROM THE 6FUSION MARKETPLACE. THE TERM “END USER” FOR PURPOSES OF THIS AGREEMENT, MEANS THE COMPANY OR OTHER ENTITY WHOM YOU REPRESENT AND ON WHOSE BEHALF YOU ACCESS AND USE THE 6FUSION SOFTWARE OR 6FUSION PLATFORM UNDER ACTUAL OR APPARENT AUTHORITY. BY AGREEING TO THIS AGREEMENT AND/OR USING THE 6FUSION SOFTWARE OR 6FUSION PLATFORM, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO REPRESENT AND LEGALLY BIND THE COMPANY OR OTHER ENTITY FOR WHOM YOU ARE ACTING. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS RELATING TO YOUR USE OF THE 6FUSION SOFTWARE OR 6FUSION PLATFORM, AND IN SUCH EVENT, “END USER” SHALL REFER TO YOU IN YOUR INDIVIDUAL CAPACITY.
1.1. “6fusion Marketplace” means the online venue from which 6fusion offers Supplier Services and from which Supplier Services may be procured.
1.2. “6fusion Platform” means the online service that 6fusion provides through the use of 6fusion Software and through which 6fusion provides access to the 6fusion Marketplace.
1.3. “6fusion Site” means the 6fusion websites from which a 6fusion customer may access the 6fusion Platform.
1.4. “6fusion Software” means 6fusion’s proprietary software that facilitates transmission of Metering Data to the 6fusion Platform.
1.5. “Distributor” means an entity to whom 6fusion has granted the right to resell certain of 6fusion’s services as well as access to and use of the 6fusion Software and 6fusion Platform.
1.6. “Documentation” means any printed, online, or other electronic user documentation that may be supplied by 6fusion for use with the 6fusion Software or 6fusion Platform.
1.7. “Metering Data” means the data received and analyzed by the 6fusion Platform relating to the use of Supplier Services or 6fusion Software by a 6fusion customer, including the measurement of the computing capacity in WAC’s.
1.8. “Reseller” means an entity to whom 6fusion has granted the right to resell access to and use of the 6fusion Software, 6fusion Platform and certain 6fusion services to customers together with that entity’s own services.
1.9. “Results” means the results of the analysis of the Metering Data by the 6fusion Platform that are made available to End User through the 6fusion Platform.
1.10. “Supplier” means an authorized third-party supplier of Supplier Services.
1.11. “Supplier Services” means those infrastructure services that a Supplier provides to End User through the 6fusion Marketplace, to the extent that End User elects to receive such services pursuant to the terms of this Agreement.
1.12. “Supplier Specific Terms” means those terms that are applicable to End User to the extent that End User elects to receive Supplier Services from a given Supplier.
1.13. “WAC” means 6fusion’s patented single unit of measurement for computing capacity.
2.2. Restrictions. End User acknowledges and agrees that the structure, organization and sequence of the 6fusion Software, 6fusion Site, 6fusion Platform and Documentation constitute valuable trade secrets of 6fusion and its licensors. Except as otherwise permitted in this Agreement, End User agrees not to, and agrees not to permit or induce any third party to: (i) copy, download, modify, adapt, alter, translate, or create derivative works of the 6fusion Site, 6fusion Software, Documentation or 6fusion Platform; (ii) merge the 6fusion Software and/or 6fusion Platform with other software or service; (iii) distribute, sublicense, lease, rent, loan, or otherwise transfer the 6fusion Software and/or 6fusion Platform to any third party, or enable the use of the 6fusion Software and/or 6fusion Platform on a time-share or service bureau basis; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the 6fusion Software, 6fusion Site or 6fusion Platform; or (v) publish or disclose to third parties any evaluation of the 6fusion Software, 6fusion Site or 6fusion Platform without 6fusion’s prior written consent.
2.3. Ownership & Reservation of Rights.
2.3.1.The Documentation, 6fusion Site, 6fusion Software and 6fusion Platform (as well as any materials, tools, documents, diagnostics and test infrastructure provided by 6fusion to support the 6fusion Site, 6fusion Software and 6fusion Platform) and all worldwide intellectual property rights therein are the exclusive property of 6fusion and/or its licensors. All rights in and to the Documentation, 6fusion Site, 6fusion Software and 6fusion Platform not expressly granted to End User in this Agreement are reserved by 6fusion and/or its licensors. Nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of 6fusion’s existing or future patents. End User will not remove, alter, or obscure any proprietary notices (including copyright notices) of 6fusion on the Documentation, 6fusion Site, 6fusion Software or the 6fusion Platform.
2.3.2.In connection with the operation of the 6fusion Platform and End User’s use of the 6fusion Software, 6fusion receives Metering Data from End User and/or Suppliers, as applicable. End User agree that 6fusion may: (a) use the Metering Data for 6fusions’s internal business purposes, including but not limited to using the Metering Data to generate the Results; (b) if required by End User’s Supplier for billing purposes, disclose the Metering Data and/or Results to Supplier; (c) disclose the Metering Data as may be required by law or legal process; and (d) use and disclose the Metering Data for any purpose as determined by 6fusion in aggregated form or any other form that does not specifically identify End User. End User may use the Results it receives for its internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of such data, and that End User obtain any consents, authorizations and clearances that may be required in connection therewith.
2.4. Feedback. End User may inform 6fusion of any problems encountered using the Documentation, 6fusion Site, 6fusion Software and/or 6fusion Platform, or any ideas End User may have for improvements or enhancements (“Feedback”). End User hereby assigns to 6fusion all right, title and interest to the Feedback, including all related intellectual property rights.
3. Fees and Taxes
3.1. Payment. End User agrees to pay 6fusion, or 6fusion’s designated Distributor or Reseller, as applicable, all applicable fees as set forth in the 6fusion’s standard price list for the 6fusion Software and 6fusion Platform as in effect from time to time, unless a different price has been provided to End User in writing by a Distributor or Reseller, as applicable. All fees are payable in United States dollars and are exclusive of any and all taxes. End User is responsible for payment of such taxes (excluding taxes based on 6fusion’s income). End User shall also pay all import and export duties, government permit fees, license fees, customs fees and similar fees levied as a result of the existence or operation of this Agreement.
3.2. Method of Payment. Unless otherwise agreed between End User and Distributor or Reseller, as applicable, End User shall make payment via credit card. End User will maintain a valid credit card on file at all times. 6fusion may, in 6fusion’s sole discretion, charge End User’s credit card for all charges or other fees due hereunder on the first business day prior to any payment due-date. End User will update its credit card information with 6fusion as necessary. If any charge attempt is denied, 6fusion may interrupt or suspend End User’s access to the 6fusion Platforms without advanced notice but will make reasonable efforts to provide such notice.
3.3. Late Payment. End User will notify 6fusion of any billing dispute, providing details regarding the nature of the dispute and the amount, within fifteen (15) days of the date on the charge in question, or waive such dispute. Any payment not received when due will, at 6fusion’s option, bear interest at a rate of one and one-half percent (1.5%) per month from the date due until paid, or the highest rate permitted by law, whichever is less.
4. Service Availability and Use
4.1. Service Availability
4.1.1.The 6fusion Site and/or 6fusion Platform may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability or as a result of system failures or force majeure events. 6fusion will use commercially efforts to make the 6fusion Platform available in accordance with the Service Level Agreement available at http://www.6fusion.com/6fusion-legal-overview/6fusion-platform-sla/, and to provide information regarding any interruptions and the restoration of use of, and access to the 6fusion Site and 6fusion Platform following any such interruption.
18.104.22.168fusion may temporarily suspend End User’s access to any portion or all of the 6fusion Site, the 6fusion Platform and/or End User’s account if 6fusion reasonably determines that: (a) there is a threat or attack on the 6fusion Site (including a denial of service attack) or other event that may create a risk to the 6fusion Site or the 6fusion Platform, End User or any other user of the 6fusion Site or the 6fusion Platform; (b) End User’s use of the 6fusion Site or the 6fusion Platform disrupts or poses a security risk to the 6fusion Site or 6fusion Platform or any other user of the 6fusion Site or 6fusion Platform, may harm 6fusion’s systems or any other user of the 6fusion Site or 6fusion Platform, or may subject 6fusion or any third party to liability; (c) End User is using the 6fusion Site or 6fusion Platform for fraudulent or illegal activities; (d) End User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) End User is using the 6fusion Site, 6fusion Platform or other 6fusion property in breach of this Agreement; (f) End User is in default of its payment obligations hereunder (collectively, “Service Suspensions”). End User understands that the reasons for suspension listed above may be imposed on 6fusion by third party service providers, and may result in its access to the 6fusion Site or 6fusion Platform being suspended as a result of the actions of other users. 6fusion will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to End User (including through notices posted on the 6fusion Site or sent to End User’s e-mail address as specified on End User’s account registration) and to provide updates regarding resumption of the 6fusion Platform following any Service Suspension. 6fusion will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that End User may incur as a result of any Service Suspension.
4.2. Service Use Restrictions.
4.2.1.End User may use the 6fusion Platform to access the Results obtained from Metering Data related to End User’s internal network, or End User may use the 6fusion Platform to access the Results obtained from the Metering Data that End User receives from a Supplier. End User understands and agrees that, should End User desire to use Supplier Services and access the Results of the Metering Data, End User must purchase Supplier Services with one or more authorized Suppliers through the 6fusion Marketplace or Reseller pursuant to the terms of Section 11 (Supplier Services) of this Agreement.
4.2.2.End User covenants that it will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the 6fusion Site or 6fusion Platform or otherwise attempt to gain unauthorized access to any portion or feature of the 6fusion Site, or any other systems or networks connected to the 6fusion Platform, or to any 6fusion server, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the 6fusion Platform or 6fusion Site; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the 6fusion Platform or 6fusion Site or any transaction being conducted on the 6fusion Site, or with any other person’s use of the 6fusion Platform or 6fusion Site; (d) breach any security measures implemented on the 6fusion Platform or 6fusion Site or otherwise attempt to use the 6fusion Platform or 6fusion Site in a way that is intended to avoid incurring fees or exceed usage limits; (e) track or seek to trace any information on any other person who uses the 6fusion Platform or 6fusion Site; (f) forge headers or otherwise manipulate identifiers in order to disguise End User’s identity, or the origin of any message or other communication that End User sends to 6fusion in connection with the 6fusion Platform or 6fusion Site; (g) pretend that End User is, or that End User represents, someone else, or impersonate any other person; (h) use the 6fusion Platform or 6fusion Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; or (i) upload or otherwise process any malicious content to, through, or in connection with the 6fusion Platform or 6fusion Site.
4.2.3.End User hereby agrees that it will notify 6fusion if it becomes aware that the 6fusion Site or 6fusion Platform is being used for any illegal or unauthorized purpose.
5. Confidentiality and Non-Solicitation
5.1. Accounts; User Names and Passwords. End User is responsible for maintaining the confidentiality of its usernames and passwords, and End User will not transfer or sell to any third party such usernames or passwords, or End User’s access to the 6fusion Software or 6fusion Platform. End User will notify 6fusion immediately if it becomes aware of any unauthorized use of End User’s account, user name or password, or any other breach of security in connection therewith. End User represents and warrants that the information that it provides when registering for its account and otherwise through its use of the 6fusion Site, 6fusion Software and 6fusion Platform is accurate, complete and up to date.
5.2. Confidential Information.
5.2.1.Each of the parties acknowledges during the term of this Agreement that they may have access to or receive the other parties’ non-public and/or proprietary information (collectively, “Confidential Information”). Accordingly, the parties hereto undertake to the other to keep confidential all Confidential Information (regardless of the manner in which it is so furnished) during the term of this Agreement and for five (5) years following the termination of this Agreement. Each party shall limit the possession and use of the other parties’ Confidential Information to those of its employees, agents and sub-contractors (“Representatives”) on a ‘need-to-know’ basis. Each party’s Representatives who obtain or gain access to the Confidential Information shall promise to treat the information as confidential. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this Section by its employees, agents and sub-contractors.
5.2.2.Confidential Information shall not include any information that is (i) already rightfully known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
5.3. Non-Solicitation. End User agrees that it will not, during the term of this Agreement and for one (1) year immediately following its expiration of termination, induce or attempt to influence, directly or indirectly, any employee of 6fusion to terminate his/her employment with 6fusion and work for End User or any other person; provided, however, that the foregoing shall not be construed to prohibit the hiring of any individual who responds to a general advertisement or solicitation of employment, whether in print or via a social network or other online recruiting site not targeted at any specific individual.
6. REPRESENTATIONS AND WARRANTIES
End User represents and warrants that: (a) End User has and will maintain throughout the term of this Agreement all rights, authorizations and licenses that are required to permit 6fusion to provide the 6fusion Software and 6fusion Platform to End User; (b) End User will not engage in any illegal or fraudulent business practice in connection with its use of the 6fusion Site, 6fusion Software or 6fusion Platform; (c) End User has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of End User hereunder; (d) End User has complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws) in End User’s performance of any acts hereunder; and (e) End User has complied and will continue to comply with the terms and conditions of the Supplier Specific Terms for any Supplier Services that End User may purchase under this Agreement.
7. DISCLAIMER OF WARRANTIES
7.1. The 6fusion Software, and the information and services included in or available through the 6fusion Site and 6fusion Platform, including the Results, may include inaccuracies or typographical errors. 6fusion may make improvements and/or changes in the 6fusion Site, 6fusion Platform or Documentation at any time, with or without notice. 6fusion does not represent or warrant that the 6fusion Software, 6fusion Site and/or 6fusion Platform are free of viruses or other harmful components. 6fusion does not warrant or represent that the Results will be correct, accurate, timely or otherwise reliable
7.2. THE 6FUSION SITE, 6FUSION SOFTWARE, 6FUSION PLATFORM, 6FUSION MARKETPLACE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. 6FUSION ON BEHALF OF ITSELF AND THE OTHER 6FUSION PARTIES (AS DEFINED BELOW) HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE 6FUSION SITE, 6FUSION SOFTWARE OR 6FUSION PLATFORM ARE ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, OR ARE SUFFICIENTLY DOCUMENTED TO BE USABLE BY THE END USER. THE END USER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE 6FUSION SITE, 6FUSION SOFTWARE, 6FUSION PLATFORM, 6FUSION MARKETPLACE AND DOCUMENTATION. 6FUSION DOES NOT ENDORSE, WARRANT, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE 6FUSION SITE OR ANY HYPERLINKED SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISEMENT, INCLUDING BUT NOT LIMITED TO SUPPLIER SERVICES OFFERED BY SUPPLIERS THROUGH THE 6FUSION MARKETPLACE. 6FUSION WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN END USER AND ANY PARTY, INCLUDING BUT NOT LIMITED TO AGREEMENTS BETWEEN END USER AND SUPPLIERS. TO THE EXTENT THAT 6FUSION MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW. THE END USER ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, WARRANTIES, OR OTHER STATEMENTS THAT MAY HAVE BEEN MADE ORALLY OR IN WRITING), AND IS RELYING SOLELY UPON ITS OWN JUDGMENT AND EXPERTISE, AS TO THE SUITABILITY OF THE 6FUSION SITE, 6FUSION SOFTWARE, 6FUSION PLATFORM AND DOCUMENTATION FOR THE END USER’S USE.
8.1. Infringement. 6fusion shall defend End User from and against any and all third party claims or demands (“Claims”) that End User’s use of the 6Fusion Software or 6fusion Platform in the form made available to End User is held by a court of competent jurisdiction to infringe any United States patent, United States copyright or trade secret protected under the laws of the United States, and 6fusion shall pay any losses, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded against End User as a result of any Claim. End User shall give 6fusion prompt written notice of all Claims for which indemnity is sought hereunder and shall provide 6fusion with: (a) all related documentation in End User’s possession or control relating to such Claims; and (b) reasonable assistance to 6fusion in the defense of such Claims. 6fusion shall control, at 6fusion’s sole cost and expense, the defense or settlement of all such Claims and shall keep End User apprised of the status of all such Claims. End User shall have the right, but not the obligation, to participate in the defense of all such Claims with counsel of End User’s choice at End User’s sole cost and expense.
8.2. Limitations. Notwithstanding the foregoing, 6fusion shall not have any liability or indemnification obligations to End User under this Agreement to the extent that any Claim is based in whole or in part upon or arises out of: (a) use of the 6fusion Software or 6fusion Platform by End User or any third party in combination with equipment, materials, products or software where the 6fusion Software or 6fusion Platform alone would not be infringing; (b) modification of the 6fusion Software or 6fusion Platform by any party other than 6fusion; or (c) use of the 6fusion Software or 6fusion Platform in a manner not authorized by this Agreement. End User understands and acknowledges that 6fusion does not control the flow of data to or from the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt End User’s connections to the Internet (or portions thereof). Although 6fusion will use commercially reasonable efforts to take the action it deems appropriate to remedy and avoid such events, 6fusion cannot guarantee that such events will not occur. Accordingly, 6fusion disclaims any and all liability resulting from or related to such events to the extent such events are not directly caused by 6fusion, or any of its agents or subcontractors.
8.3. License, Replacement or Refund. If the 6fusion Software or 6fusion Platform becomes the subject of a Claim as set forth in Section 8.1 above or if 6fusion believes that the 6fusion Software or 6fusion Platform is likely to become the subject of a Claim, 6fusion may, at its sole discretion and expense: (i) obtain a license from such third party for the benefit of End User; (ii) replace or modify the 6fusion Software or 6fusion Platform, as applicable (“Replacement”) so it is no longer the subject of a Claim so long as such Replacement performs substantially the same functions as the 6fusion Software or 6fusion Platform at issue; or (iii) if neither of the foregoing is deemed by 6fusion in its sole discretion to be commercially feasible, terminate this Agreement with no further liability to End User. This Section 8.3 and the indemnification obligations in Section 8.1 state the entire liability of 6fusion with respect to any alleged intellectual property infringement caused by the 6fusion Software or 6fusion Platform.
8.4. Indemnification by End User. End User shall indemnify and hold the 6fusion Parties (as defined below) harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to third party claims based upon: (i) End User’s use of the 6fusion Software and/or 6fusion Platform as set forth in Section 8.2 (a), (b) and (c); (ii) End User’s failure to strictly maintain the confidentiality and integrity of any account, user name or passwords used in connection with the 6fusion Software or 6fusion Platform; (iii) End User’s violation of applicable laws, rules or regulations in connection with End User’s use of the 6fusion Software, 6fusion Platform or 6fusion Site; (iv) the Metering Data; or (v) End User’s failure to comply with the terms of this Agreement. 6fusion shall give End User prompt written notice of any claim, action or demand for which indemnity is sought hereunder and End User shall control, at End User’s sole cost and expense, the defense or settlement of any such claim. 6fusion shall have the right, but not the obligation, to participate in the defense of such claim with counsel of 6fusion’s choice at 6fusion’s sole cost and expense.
9. LIMITATIONS OF LIABILITY
9.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL 6FUSION AND/OR ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE “6FUSION PARTIES”) HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF ANTICIPATED PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, COMPUTER FAILURE OR MALFUNCTION, EVEN IF THE 6FUSION PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE 6FUSION PARTIES’ AGGREGATE LIABILITY FOR DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
9.2. THE 6FUSION PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY 6FUSION EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO 6FUSION, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE 6FUSION SITE 6FUSION SOFTWARE AND/OR 6FUSION PLATFORM; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO END USER OR OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER 6FUSION CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER 6FUSION CUSTOMERS, SUPPLIERS AND OTHER THIRD PARTY PROVIDERS OF PRODUCTS AND SERVICES; (vi) ACTIONS OF 6FUSION EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE 6FUSION SITE, 6FUSION SOFTWARE OR 6FUSION PLATFORM, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION, SUSPENSION AND/OR TERMINATION OF THE 6FUSION PLATFORM; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE 6FUSION SITE 6FUSION SOFTWARE AND/OR 6FUSION PLATFORM.
9.3. Basis of Bargain. The parties expressly acknowledge and agree that 6fusion has agreed to grant the licenses granted herein on the terms set forth in this Agreement in express reliance upon the limitations of liability specified herein, which allocate the risk between 6fusion and the End User.
10. TERM AND TERMINATION
10.1. Term. The term of this Agreement will commence on the date on which the End User clicks the “I Accept the Terms of this Agreement” button as part of the registration process required to access and use the 6fusion Software and 6fusion Platform on the 6fusion Site.
10.2. Termination. End User may terminate this Agreement upon written notice to 6fusion for convenience or 6fusion may terminate this Agreement if End User’s material breach is not cured within thirty (30) days after 6fusion’s written notice. End User will not receive a refund of any prepaid amounts or advance payments if this Agreement is terminated as a result of either circumstance described in the preceding sentence. End User may terminate this Agreement if 6fusion’s material breach is not cured within thirty (30) days after End User’s written notice, and in such event, End User shall be entitled to a refund of any prepaid amounts or advance payments for the period for which the Agreement was terminated.
10.3. Effects of Termination. Upon the termination of this Agreement for any reason: (i) all licenses granted to End User in this Agreement will immediately cease to exist, and (ii) the End User must promptly discontinue all further use of the 6fusion Software, 6fusion Platform and Documentation, and destroy any copies of the Documentation in its possession. Sections 1 (Definitions), 2.2 (Restrictions), 2.3 (Ownership & Reservation of Rights), 5.2 (Confidential Information), 5.3 (Non-Solicitation), 7 (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitations of Liability), 10.3 (Effects of Termination), 11 (Supplier Service; Disputes Between End User and Suppliers) and 12 (Miscellaneous) of this Agreement will survive the termination of this Agreement.
11. SUPPLIER SERVICES
If End User elects to purchase Supplier Services under this Agreement, the following terms shall apply only to those End Users and not End Users who use only the 6fusion Software and 6fusion Platform without purchasing Supplier Services.
11.1. Scope of Agreement With Respect to Supplier Services. End User is entering into this Agreement in order to receive Supplier Services. This Agreement specifies the terms that apply to all Supplier Services that End User may receive through the 6fusion Marketplace except that the specific Supplier Services provided by a given individual Supplier will be governed by the Supplier Specific Terms for those specific Supplier Services. For the avoidance of doubt, End User may elect to purchase and receive Supplier Services from more than one Supplier. In such event, End User will be subject to the Supplier Specific Terms that apply only to the Supplier Services provided by the corresponding Supplier; End User will be subject to different Supplier Specific Terms that correspond to the other Supplier Services that End User is purchasing and receiving from other corresponding Suppliers. As a condition to receiving the Supplier Services, End User will be required to affirmatively agree to the Supplier Specific Terms for the Supplier Services End User is purchasing. In the event of any inconsistency between this Agreement and any Supplier Specific Terms, the Supplier Specific Terms shall control with respect to the Supplier Services but this Agreement shall control with respect to any rights, obligations or liabilities of 6fusion to End User. Though End User is receiving the Supplier Services through the 6fusion Marketplace, End User acknowledges and agrees that neither 6fusion, nor its Distributor or Resellers, shall have any responsibility or liability for any Supplier Services. End User hereby acknowledges and agrees that 6fusion is not a party to any oral or written agreement for Supplier Services or any other contract entered into between End User and any Supplier in connection with any service offered, directly or indirectly, through the 6fusion Marketplace. All claims, disputes and damages arising out of or related to the Supplier Services and End User’s use or inability to use any Supplier Services shall be made and asserted only against the Supplier that is providing the Supplier Services.
11.2. Ownership. End User understands that Supplier and its licensors own all right, title and interest in and to the Supplier Services.
11.3. Payments. End User shall pay all applicable fees as set forth in the 6fusion Marketplace as in effect from time to time, unless a different price has been provided to End User in writing by a Supplier, Reseller or 6fusion, as applicable. End User shall pay 6fusion or Reseller for use and access of the Supplier Services, as agreed by End User at the time End User selects the Supplier Services.
11.4. Supplier Services. End User acknowledges and agrees that (i) it is solely responsible for addressing all issues that exist now or may arise in the future in connection with the applicable Supplier Service(s); and (ii) it is solely the responsibility of End User to enter into agreements with Suppliers for the provision of Supplier Services. End User understands that deciding whether to use the services of a particular Supplier is End User’s personal decision for which it alone is responsible. End User understands that 6fusion does not and cannot make representations as to the suitability of any particular Supplier or to the accuracy or suitability of any advice, information, or recommendations made by any Supplier. End User should not rely on the any information or resources contained on the 6fusion Site as a replacement or substitute for any professional, financial, legal or other advice or counsel. 6fusion makes no representations and warranties, and expressly disclaims any and all liability, concerning actions taken by End User following the information or using the resources offered or provided on or through the 6fusion Marketplace. Should End User require professional advice, End User should consult a qualified specialist and should not avoid or delay obtaining professional advice from a qualified specialist because of information or resources that are provided on the 6fusion Site or 6fusion Marketplace, however provided.
11.5. Supplier Service Availability. All service level agreements with respect to the Supplier Services are provided only by Supplier in accordance with the Supplier Specific Terms for the applicable Supplier Service.
11.6. Suspension of Supplier Services. End User’s use and access of the Supplier Services may be suspended or terminated by 6fusion or by Supplier (at 6fusion’s direction) for any breach of this Agreement or the Supplier Specific Terms applicable to the Supplier Services, as more particularly set forth in the Supplier Specific Terms for the applicable Supplier Services. Supplier Services may be reinstated, if at all, pursuant to the applicable Supplier Specific Terms.
11.7. Disputes Over Supplier Services. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, END USER AGREES THAT 6FUSION SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT WHATSOEVER INCURRED AS THE RESULT OF ANY END USER TRANSACTIONS OR DEALINGS WITH ANY SUPPLIER. IF THERE IS A DISPUTE BETWEEN END USER AND ANY SUPPLIER, END USER ACKNOWLEDGES AND AGREES THAT 6FUSION IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN END USER AND ONE OR MORE SUPPLIERS OR OTHER THIRD PARTIES, END USER HEREBY AGREES TO HOLD THE 6FUSION PARTIES HARMLESS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES.
12.1. Assignment. The End User may not assign this Agreement or delegate any of its obligations under this Agreement, by operation of law or otherwise (including, without limitation, by merger, sale of assets, or consolidation), without 6fusion’s express prior written consent. Unless otherwise agreed, 6fusion may freely assign any of its rights or delegate any of its obligations under this Agreement. Any attempted assignment in violation of this Section 12.1 will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
12.2. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of North Carolina, notwithstanding any conflict-of-laws doctrines. Any and all disputes between the parties arising under or in connection with this Agreement, which cannot amicably be resolved by the parties, shall be resolved solely and exclusively in the state and federal courts located in Wake County, North Carolina, excluding the application of its conflict or choice of law rules as well as the application to this Agreement of The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA), with the exception that 6fusion shall have the right to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. Each party hereby expressly consents to the service of process in connection therewith and irrevocably waives any objections to the jurisdiction of such courts on any grounds, including without limitation, forum non conveniens. Any judgment or award by such courts may be entered and enforced by any court having jurisdiction over the parties or their assets.
12.3. Severability. If for any reason a tribunal of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
12.4. Notices. All notices required or permitted under this Agreement will be in writing and delivered by hand, confirmed facsimile, courier, overnight delivery service, or certified mail, and in each instance will be deemed given upon receipt. Notices to 6fusion will be sent to 6fusion USA, Inc., 19c Trolley Square, Wilmington, DE 19806, Facsimile: (441) 294-8765. Notices to the End User will be sent to the address or fax number provided by the End User during the registration process completed by the End User to enable it to download the 6fusion Software. In addition to the foregoing, 6fusion may terminate this Agreement pursuant to Section 10.2 above, by sending an e-mail to the End User indicating such termination, and such e-mail will constitute written notice for purposes of Section 10.2.
12.5. Trademarks. End User shall acquire no right, title or interest in any trademarks or other intellectual property of 6fusion. End User shall not use any 6fusion trademarks, whether as part of End User’s corporate or trade name or otherwise, and shall not permit any third party to do so without the prior written consent of 6fusion. End User shall not adopt, use or register any words, phrases or symbols which are identical to or confusingly similar to any of 6fusion’s trademarks.
12.6. Relationship of Parties. The parties are independent contractors, and no agency, employment, partnership, fiduciary, or joint venture relationship is intended or created by this Agreement. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose and neither party has the power or authority as partner, agent, employee, or in any other capacity, to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.
12.7. Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8. U.S. Government Users. The 6fusion Software and Documentation are a “Commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through § 227.7202-4, as applicable, the 6fusion Software and Documentation are licensed to U.S. Government end users: (i) only as “Commercial items”; and (ii) with only those rights as are granted to all other licensees pursuant to the terms and conditions of this Agreement.
12.9. Support and Maintenance. Subject to your payment of the applicable fees, 6fusion will provide support and maintenance of the 6fusion Software pursuant to the terms of the 6fusion support and maintenance program (if any) for which you have registered. For general support terms and information on how to contact 6fusion’s support team, please visit http://www.6fusion.com/support/.
13. Entire Agreement
Unless expressly stated to the contrary in an agreement between 6fusion and End User or a Distributor or Reseller, as applicable, this Agreement contains the complete understanding and agreement of the parties, and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter hereof. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.