This Unlayer License Agreement (the "Agreement") is entered between Unrolled LLC., a Delaware corporation with offices located at 388 Market St, Suite 1300, San Francisco, CA 94111 ("Unrolled"), acting for and on behalf of itself and each of its Affiliates, and the client identified with the information provided by completing the Registration Form as below defined (hereinafter, the "Client").
Unrolled and the Client individually also the "Party", and collectively, the "Parties".
- Unrolled is a company specialized in the digital marketing and digital communications sector;
- The Client is the owner, developer or licensee of certain web-based proprietary and commercially available software packages or mobile applications. The Client wishes to use the Software and make it available to its customers as part of, or in connection with, its software packages or mobile applications and Unrolled has agreed to such use on the terms and conditions of this Agreement;
- The Software is an instrument reserved to professional users and the Client undertakes to use it exclusively in connection with its business and for purposes related to it.
THE PARTIES AGREE AS FOLLOWS
1. Recitals, definitions, and external links
The recitals, the definitions and the external links to the Agreement constitute an integral and substantive part hereof.
When used in this Agreement, the following terms in capital letters shall have the meaning stated in this section.
means any user name and password created by Client at the time of registering an account at https://dashboard.unlayer.com/register and used to access the online system that allows Client to create and configure a Client Project.
Additional User Fees
means a periodic fee calculated based on the number of Additional Users times the per-user fee specified for the Subscription Plan selected for the Client Project.
means the total number of unique users of the Software logged during a Billing Period for each Client Project minus the Prepaid Users included in the Subscription Plan selected for that Client Project.
means any person, corporation, or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with Unrolled. For this purpose, "control" shall mean (i) possession, direct or indirect, of the power to direct or cause direction of the management and policies of a party, whether through voting securities, by contract or other means; and/or (ii) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity or voting shares of a party.
means this Unlayer License Agreement.
means a set of unique identifiers (Client ID and Client Secret Key) provided to Client for each instance of Client Project and used to authorize each use of the Software for that instance of Client Project.
means an instance of the Software created by Client at https://dashboard.unlayer.com. Client may create multiple Client Projects as they may decide to use multiple of the Software embedded in various Client Software Packages.
means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an User by or through the Software.
Client Software Package(s)
means Client's mobile or website application(s), in which the Client wants to embed the Software.
means Client's trademarks, trade names, service marks, trade dress, logos and derivative works.
means documentation provided by Unrolled to the Client in electronic format.
means the date this Agreement comes into effect, as notified by Unrolled to the Client with an email sent to the email address provided by the Client in the Registration Form and that the Client declares to periodically check.
means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Client or any User from accessing or using the Software or Unrolled Systems as intended by this Agreement. Harmful Code does not include any Unrolled Disabling Device.
images that are included in the content created with the Software and that are hosted and delivered by the Software at the time the content is viewed.
Image Delivery Fees
means a periodic fee calculated based on the amount of data that is transferred when Hosted Images are delivered at the time the content is viewed, expressed in GigaBytes, times the dollar amount per GigaByte for the selected Subscription Plan. Image Delivery Fees only apply when the selected Client Project has been configured to use Hosted Images. There are no Hosting Fees for images other than Hosted Images.
means all current and future worldwide copyright, patents, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future.
means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
Unrolled Disabling Device
means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Unrolled or its designee to disable Client's or any User's access to or use of the Software automatically with the passage of time or under the positive control of Unrolled or its designee.
means the Software, Specifications, Documentation and Unrolled Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Unrolled or any Subcontractor in connection with the Software, including any third party materials licensed to Unrolled, or otherwise comprise or relate to the Software or Unrolled Systems. For the avoidance of doubt, Unrolled Materials include Resultant Data and any information, data or other content derived from Unrolled's monitoring of Client's access to or use of the Software, but do not include Client Data.
means the information technology infrastructure used by or on behalf of Unrolled in performing the Software, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Unrolled or through the use of third-party services.
means the Unrolled verbal and design trademark, the Unlayer verbal and design trademark and derivatives thereof. Unrolled is a registered trademark.
means a fixed number of users uniquely identified by the UID parameter as defined in the Software documentation which has access to use the Software without incurring "Additional User Fees". Software documentation with regard to the User ID parameter is available at http://docs.unlayer.com-
means the registration form available at https://dashboard.unlayer.com/register;
is defined in Section 7.2.
means the Unlayer software, including modifications, enhancements, improvements, updates, additions, derivative works, object code compiled therefrom, documentation and related material.
means a periodic fee that the Client undertakes to pay at the beginning of the billing period for use of the Software under the provisions of the selected Subscription Plan.
means a subscription to the Software that provides a certain number of features as listed at https://dashboard.unlayer.com/register and a certain number of Prepaid Users, as listed on the same page. A Subscription Plan must be selected for each Client Project created by Client.
Is defined in Section 7.2.
means Subscription Fees for the following billing period plus, if applicable, Additional User Fees and Image Delivery Fees for the current billing period.
means Pre-paid Users together with Additional Users.
means https://unlayer.com, including any third-level-domain and sub-domains.
Subject to the Client's acceptance of and compliance with this Agreement, and in accordance with the specifications set forth herein ("Specifications") Unrolled hereby grants the Client a limited, worldwide, non-exclusive, non-assignable and non-transferrable (except as specifically set out in this Agreement) right and license to:
- embed the Software within Client Software Packages or otherwise link or interoperate the Software with the Client Software Packages for the purpose of allowing Users and individuals authorized by such Users to access, use and operate the Software in connection with access and use of the Client Projects;
- demonstrate the Software to potential Users.
For clarity, the foregoing license rights granted by Unrolled to Client under this Agreement specifically include the license and right:
- to embed, bundle, link or otherwise incorporate the Software into the Client Software Packages;
- to sublicense, grant usage rights and distribute the Software to Client's customers in connection with the distribution of the Client Projects;
- to use and distribute the Software documentation and related materials as reasonably required to affect the foregoing license rights;
- to the extent reasonably required to effect the embedding, bundling, linking and/or incorporation of the Software described in this Agreement, to reverse engineer, decompile, recompile the Software;
- to make the Software available for access and use by Client's customers under Client's or its Affiliates' branding;
- to access, execute, display, perform, operate and otherwise use the integration or interface developed by Unrolled to create interoperability between the Software and the Client Software Packages (including any application programming interface developed and maintained by Unrolled to enable such interoperability) and to authorize Client customers to access, execute, display, perform, operate and otherwise use the Software utilizing such integration or interface within the Client Projects.
The foregoing limited license provides Client the right to sub-license and make available access and use rights to the Software to:
- Client's customers under a license, sublicense or services agreement with the Client under the Client's own branding, providing such Client's customers and their respective authorized users the right to access, execute, display, perform and otherwise use the Software for their respective internal business purposes; and
- Third Party Services Providers (as defined below in this Section) solely for the purpose of permitting such Third Party Services Providers the right to access, execute, display, perform and otherwise use the Software as part of the services provided by such Third Party Services Providers to Client and to reproduce the Software for archival, back-up, and disaster recovery purposes for the benefit of Client. As used in this Agreement the term "Third Party Services Providers" shall mean those third party information technology vendors (including third party hosting provider(s)) of Client who are subject to contractual obligations of confidentiality and protection of proprietary rights.
Except for the limited usage rights Client may grant to Users and Third Party Service Providers and except for the assignment or transfer by Client to any of its Affiliates, the license rights granted in this Agreement are not transferable and not assignable to third parties.
The License rights to the Software granted in this Agreement are for the Client's and its customers' internal business purposes and the Client shall not license, distribute or otherwise grant rights in the Software to its Users except as embedded, linked, bundled with, or otherwise incorporated into the Client Projects. The Client shall not market, sublicense or resell the Software as a stand-alone product or services offering. The Client shall not knowingly or intentionally grant to any User greater license rights to the Software than the rights granted to the Client under this Agreement and shall cause each customer to enter into a written license agreement prior to users of such customer being given access to the Software, which contains license restrictions with respect to the Software at least as restrictive as those provided in this Agreement and the restrictions applicable to the Client Software Packages. The Client will not make any representation or warranty on behalf of Unrolled concerning the use, availability or features of the Software.
3.4. Consumer legal framework.
The Client is aware and expressly accepts that the Software is an instrument reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers.
3.5. Subcontractors. Unrolled may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
4. Use Policy
The Client shall not, and shall not permit any other person to, access or use the Software or Unrolled Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
- Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the Software or Unrolled Materials, or underlying structure, ideas, or algorithms of the Software or any software, documentation, or data related to the Software; modify, translate, or create derivative works based on the Software, except and only to the extent that such activity is expressly permitted by this Agreement; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any person, including on or in connection with the use of Software for timesharing or service bureau purposes, software as a service, cloud or other technology or service; or otherwise for the benefit of a third party unless specifically authorized by Unrolled;
- Remove or alter the Unrolled's trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;
- Display or integrate any advertisements on the Software;
- Use the Software in connection with sending unsolicited email messages, also known as spamming;
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent unlawful or injurious unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Use the Software to upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright, trademark or privacy laws unless the Client owns or controls the rights thereto or has received all necessary consent to do the same;
- Use any material of information, including images or photographs, which are made available through the Software in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party;
- Input, upload, transmit or otherwise provide to or through the Software or Unrolled Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software, Unrolled Systems or Unrolled's provision of services to any third party, in whole or in part;
- Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of the Software or other material contained in a file that is uploaded;
- Violate any applicable laws or regulations; or
- Otherwise access or use the Software or Unrolled Materials beyond the scope of the authorization granted under Section 3.
The Client shall inform its Users about such non-authorized uses. In the event that Unrolled becomes aware of the use of the Software in breach of the above provisions by the Client or its Users, Unrolled reserves the right to immediately and definitively block access to and use of the Software and/or to terminate this Agreement for breach in accordance with Section 7.3 of this Agreement.
5.1. Unrolled Systems and Security Obligations.
Unrolled will employ security measures in accordance with applicable industry practice ("Privacy and Security Policy").
5.2. Client username and password.
The Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to maintain the confidentiality of its account and password, with respect to both Access Credentials and Application Keys, and the Client agrees to notify Unrolled promptly of any known unauthorized access or of any reasonably suspected breach of its account's security. The Client shall be liable for losses incurred by Unrolled and/or another party due to a third party using the Client's account or password.
6. Client Obligations
6.1. Client Projects and Cooperation.
Client shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Client Projects; (b) provide Unrolled personnel with such access to Client Projects as is necessary for Unrolled for troubleshooting and to provide the Software in accordance with the availability requirement and Specifications; and (c) provide all cooperation and assistance as Unrolled may reasonably request to enable Unrolled to exercise its rights and perform its obligations under and in connection with this Agreement.
6.2. Effect of Client Failure or Delay.
Unrolled is not responsible or liable for any delay or failure of performance caused in whole or in part by Client's delay in performing, or failure to perform, any of its obligations under this Agreement.
6.3. Corrective Action and Notice.
If Client becomes aware of any actual or threatened activity prohibited by Section 6, Client shall, and shall cause its Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software and Unrolled Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Unrolled of any such actual or threatened activity.
7. Effective Date, Term and Termination
7.1. Initial Term.
This Agreement will be effective commencing on the Effective Date and will remain in effect for the duration of one Billing Period as selected by the Client (the "Initial Term") unless and until terminated according to the provisions of this Section 7.
This Agreement will automatically renew ("Renewal") for additional successive terms having a duration equal to the Billing Period (such successive terms, together with the Initial Term, the "Term"), unless earlier terminated pursuant to this Agreement's express provisions or the Client gives notice of non-renewal by using the "Cancel my subscription" tool, which will be effective at the expiration of the current Billing Period. In consideration of the availability of the Software, the Client will be required to pay the Fees for the entire current Billing Period, even if it does not use the Software.
In addition to any other express termination right set forth elsewhere in this Agreement,
- Unrolled may terminate this Agreement by giving written notice to the Client prior to, and effective as of, the expiration of the current Billing Period;
- Unrolled may terminate this Agreement, effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues more than seven (7) days after Unrolled's delivery of written notice thereof; or (ii) breaches any of its obligations under 6 (Client Obligations), Section 4 (Use Policy), or Section 19 (Confidential Information);
- either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.4. Effect of Expiration or Termination.
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
- Unrolled shall immediately cease all use of any Client Data or Client's Confidential Information and (i) at Client's written request destroy all documents and tangible materials containing, reflecting, incorporating or based on Client Data or Client's Confidential Information; and (ii) upon the Client's written request, permanently erase all Client Data and Client's Confidential Information from all systems Unrolled directly or indirectly controls, provided that, for clarity, Unrolled's obligations under this Section 7.4(b) do not apply to any Resultant Data;
- Client shall immediately cease all use of the Software or Unrolled Materials and (i) at Unrolled's written request destroy all documents and tangible materials containing, reflecting, incorporating or based on Unrolled's Confidential Information; and (ii) permanently erase Unrolled's Confidential Information from all systems Client directly or indirectly controls.
- notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the receiving party may retain the disclosing party's Confidential Information solely to the extent and for so long as required by applicable law; (ii) Unrolled may also retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course; and (ii) all information and materials described in this Section 7.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
- Unrolled may disable all Client and Users access to the Software and Unrolled Materials;
- if Unrolled terminates this Agreement pursuant to Section 3.5, 7.3(b) or Section 7.3(c), all fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Client shall pay such fees, together with all previously-accrued but not yet paid fees, on receipt of Unrolled's invoice therefor.
8. Fee and Payments
The Client shall pay the fees in accordance with this Section 8.
8.2. Subscription Fees.
Client shall pay the Subscription Fees for the Initial Term no later than the Effective Date. Client shall pay the Subscription Fees for any Renewal on or prior the Renewal date of each Billing Period in advance. The payment shall be made in U.S. dollars, by credit card or other payment method acceptable to Unrolled. Unrolled is hereby authorized to implement a recurring credit card payment of the Subscription Fees by processing an automatic pre-authorized charge of the amount of the Subscription Fees for the use of the Software for the Billing Period, subject to termination which may be effected by the Client in accordance with the procedures and timeframes provided under Section 8.
8.3. Additional User Fees and Hosting Fees.
At the end of each Billing Period, the Subscription Fees will be adjusted to reflect any increase in the number of Users and any Hosting Fees. The Client declares that:
- it is aware that for any Additional User the Client shall pay an Additional User Fees available at the following address https://dashboard.unlayer.com/register; the Client may at any time access the current number of Prepaid Users on the Developer Panel.
- it is aware of the fact that the exact number of Additional Users will be apparent only at the end of the Billing Period. Therefore, the Client authorizes Unrolled to automatically charge the Client for Additional User Fees and Hosting Fees and debit the Client's credit card in the following Billing Period.
8.4. Failure to Pay.
If upon automatic Renewal of this Agreement the pre-authorized charge were unsuccessful for any reason (merely by way of example and without any limitation: expired credit card or inexistence of the necessary funds), Unrolled shall inform Client via electronic mail written notice sent to the email address provided by Client in the Registration Form. Client shall have fourteen (14) calendar days from receipt of such notice to cure the breach. If the breach is not cured within such fourteen (14) calendar day period, Unrolled shall have the right to suspend performance of the Software without further notice without incurring any obligation or liability to Client or any other person by reason of such suspension, block access and use of the Software, and to terminate this Agreement pursuant to Section 8.3(b) without prejudice to Unrolled's further rights. The Parties agree that in the event of delay in the payment of the fees, Unrolled may charge interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Client shall reimburse Unrolled for all reasonable costs incurred by Unrolled in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees.
All fees and other amounts payable by Client under this Agreement are exclusive of taxes and assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Unrolled's income.
8.6. No Deductions or Setoffs.
All amounts payable to Unrolled under this Agreement shall be paid by Client to Unrolled in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
8.7. Fees Increases.
Unrolled may increase the fees by providing written notice to Client at least thirty (30) days' before the commencement date of any Billing Period.
9. Service Levels and Support
9.1. Service Level.
For free Subscription Plans, Unrolled will fulfill service level agreements on a commercially reasonable efforts basis. For paid Subscription Plans, Unrolled guarantees that the Software will be available 99,5% of the time, 24 hours a day, 365 days a year. This Software availability guarantee does not cover services that are not directly delivered by Unrolled and whose availability is outside of Unrolled's control: these include the availability of an Internet connection at the Client's location, software or hardware problems that are affecting the Client's computers, and others. The 99,5% uptime calculation does not include maintenance windows that are scheduled to occur at certain times, and are communicated to all Clients before they occur.
9.2. Scheduled Downtime.
Unrolled will use commercially reasonable efforts to give Client at least 14 days prior notice of all scheduled outages of the Software ("Scheduled Downtime").
For free Subscription Plans, Unrolled will not provide any support to the Client, but the online manuals and other documentation will be available at http://docs.unlayer.com. For paid Subscription Plans, Unrolled will use its commercially reasonable efforts to provide standard support services to the Client ("Support Services") in accordance with the Unrolled best practices in effect from time to time through: a) online manuals and other documentation available at http://docs.unlayer.com; b) via e-mail by opening a support ticket at email@example.com. When a support ticket is opened, Unrolled staff will use its commercially reasonable efforts to respond to it in a timely manner: a reply to the support ticket is typically provided within 12 (twelve) business hours.
10. Representations and Warranties
10.1. Warranties by the Client. The Client represents and warrants that:
- It has the full power to enter into and fully perform this Agreement.
- Client Software Packages , services, products, materials, contents of the messages, data, and information used by Client in connection with this Agreement and the Software does not as of the Effective Date, and will not during the Term of this Agreement, operate in any manner that would violate any applicable law or regulation.
In the event of any breach, or reasonably anticipated breach, of any of Client's warranties herein, in addition to any other remedies available at law or in equity, Unrolled will have the right to immediately, in Unrolled's sole discretion, suspend the access and use of the Software if deemed reasonably necessary by Unrolled to prevent any harm to Unrolled or its business.
10.2. Warranties by Unrolled.
Unrolled represents and warrants that:
- it is has the full power and authority to enter into and fully perform this Agreement.
- it owns or controls all right, title, and interest in and to all Intellectual Property rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to Client herein.
EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, AND CLIENT'S USE OF THE SOFTWARE IS AT ITS OWN RISK. Unrolled DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Unrolled DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, Unrolled MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR Unrolled MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11.1. Client's Indemnification.
The Client shall indemnify, defend and hold harmless Unrolled and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Unrolled Indemnitee") from and against any Losses incurred or suffered by such Unrolled Indemnitee (1) that would not have been incurred or suffered or requested if (i) the Client had fulfilled the obligations undertaken upon entering into this Agreement and (ii) the representations and warranties provided by the Client by entering into this Agreement had been truthful, accurate, complete and not misleading; or (2) in connection with any Action by a third party that arise out of or relate to any:
- Client Data, including any processing of Client Data by or on behalf of Unrolled in accordance with this Agreement;
- any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any User, including Unrolled's compliance with any specifications or directions provided by or on behalf of Client or any User to the extent prepared without any contribution by Unrolled;
- allegation of facts that, if true, would constitute Client's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
- negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any User, or any third party on behalf of Client or any User, in connection with this Agreement.
11.2. Unrolled's Indemnification.
Unrolled shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by such Client arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of Client) that Client's or an User's use of the Software (excluding Client Software Packages, Client Data and third party materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
- access to or use of the Software or Unrolled Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Unrolled;
- modification of the Software or Unrolled Materials other than: (i) by or on behalf of Unrolled; or (ii) with Unrolled's written approval in accordance with Unrolled's written specification;
- failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Unrolled; or
- act, omission or other matter described in Section 11.1(a), Section 11.1(b), Section 11.1(c) or Section 11.1(d), whether or not the same results in any Action against or Losses by any Unrolled Indemnitee.
11.3. Indemnification Procedure.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If any of the Software or Unrolled Materials are, or in Unrolled ‘s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client's or any User's use of the Software or Unrolled Materials is enjoined or threatened to be enjoined, Unrolled may, at its option and sole cost and expense:
- obtain the right for Client to continue to use the Software and Unrolled Materials materially as contemplated by this Agreement;
- modify or replace the Software and Unrolled Materials, in whole or in part, to seek to make the Software and Unrolled Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software and Unrolled Materials, as applicable, under this Agreement; or
- by written notice to Client, terminate this Agreement and require Client to immediately cease any use of the Software and Unrolled Materials.
THIS SECTION 11 SETS FORTH CLIENT'S SOLE REMEDIES AND Unrolled'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE AND Unrolled MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
12. Limitations of Liability
12.1. EXCLUSION OF DAMAGES.
IN NO EVENT WILL Unrolled OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. CAP ON MONETARY LIABILITY.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF Unrolled AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEE PAID BY THE CLIENT TO Unrolled DURING THE BILLING PERIOD IN WHICH THE DAMAGES FIRST OCCURRED.
The Client recognizes that Unrolled is always innovating and finding ways to improve the Software with new features and services. Therefore, the Client agrees that the Software may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Software. Unrolled will use its reasonable commercial effort to inform Client of any upcoming Software changes and to introduce features that substantially alter the functioning of the Software in a disabled state with the ability for Client to activate them at their leisure.
14. Force Majeure
Unrolled may not be deemed in any way liable for the failure to perform this Agreement caused by factors falling outside its reasonable control (a "Force Majeure Event") including by way of example and without any limitation, acts of God, uprisings, acts of terrorism and war, strikes, labor stoppages or slowdowns or other industrial disturbances, riots, tornadoes, hurricanes, floods, mudslides and landslides fire, earthquake or explosion, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation.
The Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Unrolled. Any attempted assignment or delegation without such consent will be void. Unrolled may assign this Agreement in whole or part without Client's consent upon fifteen (15) days prior written notice to the Client. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
16. Ownership of the Software
16.1. Software and Unrolled Materials.
All right, title and interest in and to the Software and Unrolled Materials, including all Intellectual Property Rights therein, are and will remain with Unrolled or Unrolled licensor's, as applicable. Client has no right, license or authorization with respect to any of the Software or Unrolled Materials except as expressly set forth in Section 3.1 and 3.2, in each case subject to Section 6. All other rights in and to the Software and Unrolled Materials are expressly reserved by Unrolled and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Unrolled an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
16.2. Client Data.
As between Client and Unrolled, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 16.3.
16.3. Consent to Use Client Data.
Client hereby irrevocably grants all such rights and permissions in or relating to Client Data: (a) to Unrolled, its Subcontractors and the Unrolled personnel as are necessary or useful to perform the Software; and (b) to Unrolled as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
17. Tax Costs
Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by the Client.
Unless otherwise provided in this Agreement, any notice or communication under this Agreement shall be in writing, and shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier; (c) when sent, if by e-mail, with confirmation of transmission and shall be sent to the other party at the addresses specified below:
If to Unrolled:
388 Market St, Suite 1300,
San Francisco, CA 94111 (USA)
Email: firstname.lastname@example.org ;
If to Client:
to the address provided by Client in the Registration Form.
The Parties hereby agree that: (a) words in electronic form shall be deemed to be "writing" for the purposes of all applicable legislation where "writing" is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.
19. Confidential Information
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, clients, technology, and products, including the terms and conditions of this Agreement ("Confidential Information"). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, client and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) the receiving party can demonstrate by written or other documentary records is independently developed by the receiving party without reference to or use of any Confidential Information.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4 (Use Policy), Section 7.4 (Effect of Expiration or Termination), Section 8 (Fee and Payments), Section 10(Representations and Warranties), Section 11 (Indemnification), Section 12 (Limitations of Liability), Section 16 (Ownership of the Software), Section 19
(Confidential Information), Section 21 (Ownership of Resultant Data), Section 25 (Miscellaneous), Section 26 (Governing Law, Venue and Jurisdiction) and this Section 20.
21. Ownership of Resultant Data
Unrolled will derive aggregated data, information, and other content by or through the Software from processing Client Data, which is sufficiently different from such Client Data and cannot be identified from the inspection, analysis or further processing of such data, information, or content (the "Resultant Data"). Unrolled will assure the full anonymization of the Resultant Data to avoid any processing and diffusion or communication of personal data of the Client. Client authorizes Unrolled to use the Resultant Data in order to contribute to the effective improvement of the functioning of the Software and the production of statistical information that may be published by Unrolled in aggregate form. Unrolled reserves the right at all times to disclose the Resultant Data as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
22. Validity of amendments and/or supplements
Unrolled may unilaterally amend this Agreement. All amendments will be effective from the moment in which the new version of this Agreement is accepted on line by the Client. Any subsequent use of the Software shall be deemed an acceptance by the Client of the same amendments and/or supplements.
23.1. Client Trademarks.
The Client hereby acknowledges and accepts that Unrolled can use Client Trademarks in presentations, marketing materials, client lists and financial reports.
23.2. Banner and links.
In case of a free Subscription Plan, the Client acknowledges and accepts the fact that Unrolled may insert in the interface of the Software:
- a wording and/or a logo of Unlayer, containing a link to one of the Unrolled sites;
- advertisements and advertising banner including, but not limited to, video advertising, social media advertising, image ads or text ads that may contain a link to third party sites. We have no responsibility or liability for the content and activities of these linked sites;
- "in-app", purchasable by the Users. The content and activities of these "in-app" are subject to their terms and policy.
24.1. Entire agreement.
This Agreement, including the external links which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings and negotiations, whether written or oral, between the Parties concerning the subject matter of this Agreement.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If one or more of the clauses of this Agreement is declared null and void or unenforceable by the competent court of law, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.
The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
24.5. No relationship.
The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
25. Governing Law, Venue and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, or (b) the United States District Court for California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and Unrolled agrees to commence any such action, suit or proceeding either in the United States District Court of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California. Each of Client and Unrolled further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party's respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section. Each of Client and Unrolled irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Superior Court of the State of California, or (ii) the United States District Court of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.