Effective Date: ____, 2017
(a) “Administrator” shall mean a Subscriber with authority to designate additional Authorized Users and/or Administrators as designated by you on the Website.
(b) “Authorized User” shall mean you and/or the partners, agents, directors, owners, members, employees, temporary employees, and independent contractors of your organization whom you have added to the account as users.
(c) "Billing Period" shall mean the one-month period for which you agree to prepay fees under an Registration Form.
(d) “Content” shall mean any information you upload or post to the Service and any information provided by you to Deleeng in connection with the Service, including, without limitation, information about your Authorized Users or Registered Clients.
(e) "Registration" or "Registration Form" means the online registration process through the Website by which you agree to subscribe to the Services.
(f) “Originating Subscriber” shall mean the Subscriber who initiated the Services offered by Deleeng and is assumed by Deleeng to have the sole authority to administer the subscription.
(g) “Registered Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.
(h) “Service(s)” shall mean any software or services that you have subscribed to by a Registration Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://deleeng.com or another designated URL, and any ancillary products and services that we provide to you.
(i) “Subscriber” shall refer to the purchaser of the Services provided by Deleeng as indicated above and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on the Subscriber’s behalf.
(j) “Subscription Fee” shall mean the amount you agreed to pay for the Services under a Registration Form.
(k) Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) Deleeng’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.
(l) “Website” shall mean the website accessible via https://deleeng.com.
2. Limited Rights & Use of the Service
2.1 Subscriber is granted a non-exclusive, non-transferable, non-assignable limited license to access and use the Service.
2.2 Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Deleeng.
2.3 Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Deleeng, or any other software or service provided by Deleeng.
2.4 Authorized Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement. Authorized Users warrant and represent to Deleeng that they own all rights to the Content or, alternatively, that they have the right to grant Deleeng the rights and licenses to use the Content pursuant to the terms and conditions of this Agreement.
2.5 Authorized Users agree that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk email “Spam,” short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.6 Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). Deleeng reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.7 Deleeng reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Deleeng shall provide Subscriber with 30-days’ notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.
2.8 Deleeng reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days’ notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by Deleeng. Further, Deleeng shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Deleeng will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
2.9 Deleeng stores all Content on redundant storage servers located in the United States. Although Deleeng’s Services may be accessible worldwide, we make no representation that the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal, is prohibited. Authorized Users who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws, including obtaining any necessary permissions for Content sourced from other persons that may contain personal data or personally-identifiable information. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.
3. Ownership and Intellectual Property Rights
3.1 Deleeng does not review or pre-screen the Content uploaded or posted to the Service by Authorized Users, and you retain all ownership and intellectual property rights in and to any Content you upload or post to the Service. In short, what belongs to you stays yours. Upon cancellation or termination of Service, Deleeng shall only be responsible for the return of Content directly to the Administrator or a designated Authorized User in the event that the Administrator is unable to be reached.
3.2 You grant to Deleeng a non-exclusive, royalty-free right during your use of the Service, to use the Content for the sole purpose of performing Deleeng’s obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Deleeng to generate and publish aggregate, anonymized reports on system usage and Content trends and type.
3.3 Except for the non-exclusive license granted pursuant to this Agreement, you acknowledge and agree that all ownership, license, intellectual property rights, and other rights and interests in and to the Service shall remain solely with Deleeng. No rights are granted to you other than those expressly set forth in this Agreement.
4. Access to the Service
4.1 Subscriber is only permitted to access and use the Service if he/she is an Authorized User or a Registered Client. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service.
4.2 Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
4.3 The initial Administrator shall be the Originating Subscriber with authority to administer the subscription and designate additional Authorized Users and/or Administrators. Each subscription may designate multiple Authorized Users as Administrator. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any Authorized User.
4.4 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
4.5 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
4.6 Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
(a) any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by this Agreement;
(b) Deleeng 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 Deleeng has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Deleeng, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
(d) Deleeng reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.
5. Subscription Type Terms
We offer four main types of subscriptions (“Subscription Plan(s)”): (a) Basic Plan, (b) Corporate Plan, (c) Intermediate Plan, and (d) Advanced Plan. There are different terms that apply depending on the Subscription Plan you purchase, and we cover those differences and limitations on the Registration Form and the Website.
6. Third-Party Service Providers
6.1 The Services may provide you access to third-party databases, networks, servers, information, software, programs, systems, directories, applications, products or services, including without limitation Google APIs and Google TensorFlow ("Third-Party Service(s)"). Your access to and use of any Third-Party Services is governed by the terms, conditions, disclaimers, and notices found on each site or otherwise associated with such Third-Party Services.
6.2 Deleeng does not control, endorse, or accept responsibility for Third Party Services. Any dealings between you and any third party in connection with a Third-Party Service, including such party’s privacy policies and use of your personal information, delivery of and payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. Deleeng disclaims any and all responsibility or liability for any harm resulting from your use of the Third-Party Services, and you hereby irrevocably waive any claim against Deleeng with respect to the content or operation of any Third-Party Services.
7. Security and Access
7.1 Deleeng is responsible for providing a secure method of authentication and accessing its Service. Deleeng will provide mechanisms that (a) allow for user password management, (b) transmit passwords in a secure format, and (c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
7.2 Subscriber will be responsible for protecting the security of usernames and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
7.3 Subscriber will implement policies and procedures to prevent unauthorized use of usernames and passwords, and will promptly notify Deleeng upon suspicion that a username and password has been lost, stolen, compromised, or misused.
7.4 At all times, Deleeng, and any third-party hosting partners it utilizes to provide the Service, will:
(a) use information security best practices for transmitting and storing your Content, adhering to industry standards;
(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
(c) ensure its host facilities maintain industry standards for security and privacy; and
(d) within thirty (30) days of a request by Subscriber, provide Subscriber with a audit report or industry standard successor report or a comparable description of its security measures.
7.5 Deleeng shall report to Subscriber, with all relevant details, any event that Deleeng reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Deleeng shall make such report within 48 hours after learning of the Security Breach.
7.6 In the event of a Security Breach, Deleeng shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertake to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.
8. Legal Compliance
8.1 Deleeng maintains that its primary duty is to protect the Content to the extent the law allows. Deleeng reserves the right to provide any Content to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
8.2 If Deleeng is required by law to make any disclosure of Content that is prohibited or otherwise constrained by this Agreement, then Deleeng will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Deleeng may furnish that portion (and only that portion) of the Content that it is legally compelled or otherwise legally required to disclose.
9. Managed Backup and Archiving
9.1 Deleeng’s managed backup services shall be designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Deleeng shall ensure recovery of lost or corrupted Content at no cost to you. Prior to any cancellation or termination of Service for any reason, Subscriber shall have at least ninety days to retrieve any and all Content.
10. Free Trial and Services
10.1 If you register for a free trial, we will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any purchased Service subscriptions ordered by you for such Service(s), or (c) termination by us in our sole discretion. Additional trial terms and conditions may appear on Webpage. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
10.2 ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM THE CORPORATE PLAN TO THE BASIC PLAN); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
10.3 NOTWITHSTANDING SECTION 15.2 (INDEMNIFICATION BY US), DURING THE FREE TRIAL DELEENG SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, DELEENG AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 13 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO DELEENG AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
11. Payment, Refunds and Subscription Changes
11.1 The Subscription Fee will be based on the Subscription Plan selected during your Registration unless you: (i) exceed your applicable limits set forth in the Registration Form, (ii) upgrade your Subscription Plan, or (iii) subscribe to additional features or products. All Subscription Fees are exclusive of all federal, state, provincial, municipal or other taxes which Subscribers agree to pay based on where the Subscriber is primarily domiciled. In addition to any fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
11.2 If you are on a monthly Billing Period, you will be charged in advance for the Services at the beginning of each month, and you authorize us to charge your credit card or bank account for all Subscription Fees payable during the Billing Period. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. If you are paying by invoice, we will invoice you no fewer than ten (10) calendar days before the beginning of each Billing Period when fees are payable. All amounts invoiced are due and payable on the first day of the month, unless otherwise specified in the Registration Form. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your account page within the Deleeng Website. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance. You agree to pay us all reasonable attorney's fees and costs incurred by us to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount.
11.3 Subscribers will be charged upon the expiration of any applicable free trial period. Subscriptions canceled prior to the expiration of any trial period, will not be charged.
11.4 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.
11.5 There are no charges for canceling a Subscription Plan, and paying Subscription Plans cancelled prior to the end of the current Billing Period will not be charged again in the following cycle.
11.6 The amount charged on the next Billing Period will be automatically updated to reflect any changes to the Subscription Plan, including upgrades or downgrades, if applicable. Subscription Plan changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
11.7 We may change the Subscription Fees for the Subscription Plan at any time or impose additional fees or charges. Such changes will be effective as of the first Billing Period that occurs more than thirty (30) days after notice of our new Subscription Fees, provided that if you upgrade or downgrade to a new Subscription Plan, whether at your election or pursuant to this Agreement, you will be charged at the then-current Subscription Fee for such Subscription Plan.
12. Cancellation, and Termination
12.1 Administrators are solely responsible for canceling Subscription Plans. An Administrator may cancel a Subscription Plan at any time through their account page on the Website.
12.2 Deleeng in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.
12.3 If (i) Authorized Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Deleeng provides Subscriber with commercially reasonable notice of this violation; (iii) Deleeng uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Deleeng’s reasonable satisfaction within thirty (30) days of such notice, then Deleeng reserves the right to suspend access to the Service.
12.4 As required by Section 9 above (“Managed Backup and Archiving”), upon cancellation or termination of a subscription, Content is made available to the Administrator or a designated Authorized User. Following a period of no less than thirty (30) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Service. All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the Escrow Agreement.
13. Limitation of Liability
13.1 Except in the case of a violation by Deleeng of its obligations under Section 7 above (“Security and Access”), and Section 9 above (“Managed Backup and Archiving”), and except as provided in Section 15.2 below (“Indemnification”), Deleeng shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Services provided to Subscriber by Deleeng.
13.2 SUBSCRIBER AGREES THAT THE LIABILITY OF DELEENG ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE SIX-MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT DELEENG IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER DELEENG HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 14.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY DELEENG TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
13.3 Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.
14. Disclaimer of Warranties
14.1 DELEENG’S SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” WHILE DELEENG USES REASONABLE ENDEAVORS TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICES AS SOON AS PRACTICABLE ONCE THEY HAVE BEEN BROUGHT TO DELEENG’S ATTENTION, DELEENG MAKES NO PROMISES, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) REGARDING THE SERVICES OR ANY PART OR PARTS THEREOF, ANY CONTENT, OR ANY THIRD-PARTY SERVICES. DELEENG DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR ANY PART OR PARTS THEREOF, THE CONTENT, OR THE SERVERS ON WHICH THE SERVICES OPERATE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DELEENG DOES NOT WARRANT THAT ANY TRANSMISSION OF CONTENT WILL BE SECURE OR THAT ANY ELEMENTS OF THE SERVICES DESIGNED TO PREVENT UNAUTHORIZED ACCESS, SHARING OR DOWNLOAD OF CONTENT WILL BE EFFECTIVE IN ANY AND ALL CASES, AND DOES NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
14.2 DELEENG AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, SPECIFICALLY DISCLAIM ALL OF THE FOREGOING WARRANTIES AND ANY OTHER WARRANTIES NOT EXPRESSLY SET OUT HEREIN TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES REGARDING NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14.3 WHERE THE LAW OF ANY JURISDICTION LIMITS OR PROHIBITS THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET OUT ABOVE, THE ABOVE DISCLAIMERS SHALL NOT APPLY TO THE EXTENT THAT THE LAW OF SUCH JURISDICTION APPLIES TO THIS AGREEMENT.
14.4 NOTHING IN THIS SECTION SHALL MODIFY DELEENG’S OBLIGATION TO INDEMNIFY SUBSCRIBER AS REQUIRED BY SECTION 15.2 OF THIS AGREEMENT (“INDEMNIFICATION”).
15.1 Subscriber hereby agrees to indemnify and hold harmless Deleeng from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following: (a) Authorized Users’ breach of any obligation stated in this Agreement, and (b) Authorized Users’ negligent acts or omissions. Deleeng will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Deleeng. Deleeng reserves the right to participate in the defense of the claim, suit, or proceeding, at Deleeng’s expense, with counsel of Deleeng’s choosing.
15.2 Deleeng shall defend, indemnify and hold Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Subscriber by a third party alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that Subscriber: (1) promptly gives written notice of the Claim to Deleeng (provided, however, that the failure to so notify shall not relieve Deleeng of its indemnification obligations unless Deleeng can show that it was materially prejudiced by such delay and then only to the extent of such prejudice); (2) gives Deleeng sole control of the defense and settlement of the Claim (provided that Deleeng may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (3) provides to Deleeng, at Deleeng’s cost, all reasonable assistance. Deleeng shall not be required to indemnify Subscriber in the event of: (x) modification of the Service by Subscriber in conflict with Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Deleeng to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.
16.1 Technical support and training are available to Authorized Users with active subscriptions, and is available through the Website and as provided in Exhibit A.
16.2 Subscriber acknowledges and agrees that Deleeng may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
16.3 Deleeng may provide the ability to integrate the Service with third party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Subscriber agrees that Deleeng has no liability arising from Subscriber’s use of any integrations or arising from the third-party products and services. Deleeng can modify or cancel the integrations at any time without notice. For purposes of calculating downtime pursuant to Exhibit A, calculation does not include the unavailability of any integration or any third-party products or services.
16.4 Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold Deleeng liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Deleeng, with strict business reasons, may access and transfer the Content and only to provide Subscriber with the Service. Deleeng will make reasonable efforts to provide notice to Subscriber prior to such access and transfer. Deleeng’ actions will comply with its obligations under this Agreement.
16.5 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
16.6 This Agreement and the documents incorporated herein constitute the entire agreement between Authorized Users and Deleeng and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Deleeng (including, but not limited to, any prior versions of this agreement). Notwithstanding the foregoing, if you have entered into a written agreement (the “Customized Agreement”) signed by Deleeng, or one of Deleeng’s Authorized Sales Agents, prior to the creation of an account through this Website, in the event of any conflict between this Agreement and the Customized Agreement, the Customized Agreement will control. For the purpose of this section, Authorized Sales Agent shall mean a business partner that has entered into a contractual relationship with Deleeng to sell certain software products, including the Services described herein, on Deleeng’s behalf.
16.7 Deleeng reserves the right to amend this Agreement. In the event of material changes to the Agreement, Deleeng will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new terms.
16.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
16.9 This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of San Antonio and County of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.
DELEENG SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES
Commencing on the date the Service to the Subscriber commences (the “Subscription Date”), Deleeng will provide Service Level Commitments (“SLC”) Credits (defined in Section 3 below) and Support Services in accordance with the SLC and Support Services Terms as defined in Section 5 herein. In the event of any conflict between the Agreement and the Service Level Commitment and Support Services Terms, the SLC and Support Services Terms will prevail. The SLC and Support Services incorporate the definitions set forth in Section 1 of the Agreement.
1. Exhibit Definitions
“Downtime” means any period, greater than ten minutes, within the Scheduled Available Time during which the Subscriber is unable to access or use the Service because of an Error (as defined below), excluding (i) any such period that occurs during any Scheduled Downtime and/or Recurring Downtime (as defined below), or (ii) document preview, search, FTP or sync functions of the Service.
“Error(s)” means the material failure of the Service to conform to its published functional specifications.
“Recurring Downtime” means 4 hours per month on the third Saturday of the month from 12:00 A.M. to 4:00 A.M. CST.
“Scheduled Available Time” means 24 hours a day, 7 days a week.
“Scheduled Downtime” means the time period identified by Deleeng in which it intends to perform any planned upgrades and/or maintenance on the Service or related systems and any overrun beyond the planned completion time.
“Uptime Percentage” means the total number of minutes of Scheduled Available Time for a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes of Scheduled Available Time in such calendar month. Uptime Percentage will be calculated by Deleeng solely using records and tools available to Deleeng.
2. Scope of Service Level Commitments.
Deleeng’s obligations do not extend to Errors or other issues caused by:
1. any modification of the Service made by any person other than Deleeng;
2. any third-party hardware or software used by Subscriber or any Registered Clients except as otherwise provided in the then current documentation;
3. the improper operation of the Service by Subscriber or Registered Clients;
4. the accidental or deliberate damage to, or intrusion or interference with the Service;
5. the use of the Service other than in accordance with any user documentation or the reasonable instructions of Deleeng;
6. ongoing test or training instances of the Service provided to Subscriber; or
7. services, circumstances or events beyond the reasonable control of Deleeng, including, without limitation, any force majeure events, the performance and/or availability of local ISPs employed by Subscriber, or any network beyond the demarcation or control of Deleeng.
3. Scheduled Downtime and Guaranteed Uptime
Deleeng will use commercially reasonable efforts to provide at least 24 hours’ prior notice before undertaking any Scheduled Downtime. Commencing on the effective date of the applicable Subscription Date, in the event the Service experiences an Uptime Percentage of less than 99.9% in any calendar month, Deleeng will provide to Subscriber a credit (“SLC Credit”) equal to the credit percentage identified in the table SLC Credits table below multiplied by the Subscriber’s fees paid to Deleeng for the Service that are attributable to such month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). Subscriber will submit a written SLC Credit request to Deleeng in writing within 30 days of such Downtime. The SLC Credit is Subscriber’s sole and exclusive remedy for any failure by Deleeng to meet any performance obligations pertaining to the Service, including, without limitation, any support obligations except as provided in the Agreement.
Deleeng reserves the right to temporarily suspend Subscriber’s or a Registered Client’s access to the Service as set out in the Agreement. Any such suspensions based on repairs, technical problems, outages or maintenance services will be subject to the Service Level Commitments.
SLC Credits Table
|Uptime Percentage||Credit Percentage|
|Equal to or greater than 98% but less than 99.9%||Less than 98%|
4. Availability of SLC Credits
Subscribers who are past due on any payments owed to Deleeng are not eligible to receive SLC Credits. Deleeng will issue SLC Credits, as determined in its sole discretion, either on future billing cycles or as a refund against annual fees paid. In order to receive any SLC Credit, Subscriber must notify Deleeng within 30 days from the time Subscriber becomes eligible to receive a SLC Credit. Failure to comply with this requirement will forfeit Subscriber’s right to receive a SLC Credit. In no event will the total amount of SLC Credits if any, exceed the fees paid by Subscriber for the corresponding month.
5. Support Services
Deleeng will provide support services to assist Subscriber in resolving Errors (“Support Services”). Support Services do not include (a) physical installation or removal of the API and any documentation; (b) visits to Subscriber’s site; (c) any electrical, mechanical or other work with hardware, accessories or other devices associated with the use of the Service; (d) any work with any third-party equipment, software or services; (e) any professional services (“Professional Services”) associated with the Service, including, without limitation, any custom development, or data modeling.
Deleeng will provide email and/or phone support as specified on the Website, excluding Deleeng corporate holidays and national Mexican and U.S. holidays except where noted.