Subscription Terms of Use

IMPORTANT: 

READ THE TERMS AND CONDITIONS OF THESE TERMS OF USE (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (DEFINED BELOW). DAVINCI LOCK SELF STORAGE, INC. (“PROVIDER”) IS WILLING TO PROVIDE THE SUBSCRIBER, AS THE AUTHORIZED END USER OF THE SERVICES (“CUSTOMER”), ACCESS TO AND USE OF THE SERVICES ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND PROVIDER. BY CLICKING “

I ACCEPT

” OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR ACCESSING OR USING THE SERVICES, CUSTOMER AFFIRMS THAT THIS AGREEMENT CONSTITUTES A WRITING, AND THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL WHO CLICKS “

I ACCEPT

” IS ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH AS FOR EXAMPLE HIS OR HER EMPLOYER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO PROVIDER THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF SUCH ENTITY. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “

I DO NOT ACCEPT

” OR “

CANCEL

” OR OTHERWISE INDICATE REFUSAL, AND DO NOT ACCESS OR USE THE SERVICES.

1. DEFINITIONS

    

   “

   Affiliate

   ” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

    

   “

   Authorized Reseller

   ” means an independent company authorized in writing by Provider to resell Davinci Locks and Services.

    

   “

   Content

   ” means information obtained by Provider from publicly available sources or its third-party content providers and made available to Customer through the Services or pursuant to an Order, as more fully described in the Documentation.

    

   “

   Customer Data

   ” means electronic data and information submitted by or for Customer to the Services, excluding Content.

    

   “

   DaVinci Locks

   ” means Provider’s proprietary DaVinci Lock® locks that are designed for use exclusively in connection with the Services.

    

   “

   Documentation

   ” means Provider’s then-current applicable documentation, usage guides and policies for the Service, as updated from time to time, accessible via Provider’s website or login to the applicable Service.

    

   “

   Intellectual Property

   ” means anything protectable by an Intellectual Property Right, including, without limitation, inventions, developments, processes, methodologies, technologies, original works of authorship, trade secrets, trademarks, and service marks.

    

   “

   Intellectual Property Right

   ” means all patent rights, copyrights, trademark rights, rights in trade secrets, designs, database rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world and all applications therefor and any extensions, continuations or reissues thereof.

    

   “

   Malicious Code

   ” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

    

   “

   Order

   ” means a written order document or online order specifying the Services to be provided hereunder that is entered into between Customer and Provider or an Authorized Reseller, including any addenda and supplements thereto.

    

   “

   Service(s)

   ” means Provider’s proprietary, cloud-based lock management solution (as further described in an Order), consisting of and using certain proprietary Provider Intellectual Property, and made available online by Provider, including associated Provider offline or mobile components, as described in the Documentation. “Services” exclude Content. Services are for use exclusively with DaVinci Locks and may not be used in connection with any other locks.

    

   “

   User

   ” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Provider without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Provider at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

    

2. PROVIDER RESPONSIBILITIES

    

   1. Provision of Services. 

      This Agreement constitutes the agreement between Customer and Provider with respect to Customer’s access to and use of the Services. Provider will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order and Documentation, (b) provide applicable Provider standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Provider shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Provider’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Provider employees), Internet service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Provider’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order. Customer may only use the Services for its internal business purposes.

       

   2. Protection of Customer Data. 

      Provider will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Provider will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Provider will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

       

   3. Purchases from Authorized Resellers. 

      Authorized Resellers are not Provider’s agents and are not authorized to alter, amend or modify the terms of this Agreement, or otherwise grant any rights relating in any way to the Davinci Locks or Services (other than the right to purchase and use DaVinci Locks and Services in accordance with and subject to the terms and conditions of this Agreement and any other applicable Provider terms, conditions, or policies). The terms and conditions of any Order or other agreement between Customer and the applicable Authorized Reseller are not binding on Provider.

       

3. USE OF SERVICES AND CONTENT

    

   1. Subscriptions. 

      Unless otherwise agreed in writing by Provider, (a) Services and access to Content are purchased as subscriptions for the term stated in the applicable Order, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.

       

   2. Customer Responsibilities. 

      Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Orders, (b) be responsible for the accuracy, quality and legality of Customer Data,the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Provider promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Orders and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or Users that in Provider’s judgment threatens the security, integrity or availability of Provider’s services, may result in Provider’s immediate suspension of the Services, however Provider will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

       

   3. Usage Restrictions. 

      Customer will not (nor will it permit any other party under its control to) (a) use any Service or Content in connection with any lock that is not a DaVinci Lock, (b) use the Services for the purpose of creating or operating a competitive service, (c) copy, modify, or create derivative works based on or including (in whole or in part), any portion of the Services, (d) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless otherwise expressly approved in writing by Provider, (e) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (f) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (g) use a Service to store or transmit Malicious Code, (h) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (i) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (j) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Provider Intellectual Property except as permitted under this Agreement, an Order, or the Documentation, (k) test the vulnerability of the Services or any Provider system or breach any security or authentication measures; (l) circumvent any technological measure implemented by Provider or any of Provider’s service providers or any other third party (including another user) to protect the Services, (j) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (m) copy Content except as permitted herein or in an Order or the Documentation, (n) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, or (o) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

       

   4. Integration with Non-Provider Applications. 

      The Services may contain features designed to interoperate with applications and program code created by or for Customer or a third party for use by Customer with the Services and Customer Data (a “

      Non-Provider Application

      ”). Provider cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Provider Application ceases to make the Non-Provider Application available for interoperation with the corresponding Service features in a manner acceptable to Provider.

       

4. PURCHASE OF DAVINCI LOCKS

    

   1. Terms of Purchase. 

      DaVinci Locks may be purchased from Provider or an Authorized Reseller on separate terms and conditions. The use of DaVinci Locks is subject to Provider’s terms and conditions therefore in effect from time to time, including, without limitation, Provider’s standard return policies.

       

   2. Discount Recapture. 

      If Customer decides to transition to a lower level version of the Service than set forth in the original Order or terminate its subscription altogether, Customer will pay Provider an amount equal to the difference between any discounted price per lock offered to Customer for subscribing to a higher level version of the Service and the standard list price per lock for each lock purchased within the 12-month period immediately preceding the transition to the lower level subscription or termination of subscription. If applicable, Customer shall pay Provider such amount within 30 days from the invoice date.

       

5. FEES AND PAYMENT

    

   1. Fees. 

      Customer will pay all fees and other amounts specified in Orders without setoff or deduction. payment obligations are non-cancelable, and fees paid are non-refundable. quantities purchased cannot be decreased during the relevant subscription term.

       

   2. Invoicing and Payment. 

      For purchases directly from Provider, Customer will provide Provider with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Provider. If Customer provides credit card information to Provider, Customer authorizes Provider to charge such credit card for all Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges for Services shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Provider will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, for purchases directly from Provider, Provider will invoice Customer upon acceptance of an Order and invoiced fees and charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information.

       

   3. Overdue Charges. 

      If any invoiced amount is not received by Provider by the due date, then without limiting Provider’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Provider may condition future subscription renewals and Orders on payment terms shorter than those specified in the “Invoicing and Payment” section above.

       

   4. Suspension of Service and Acceleration. 

      If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Provider to charge to Customer’s credit card), Provider may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend performance until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Provider will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services or deliveries to Customer.

       

   5. Taxes. 

      Provider's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “

      Taxes

      ”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Provider will invoice Customer and Customer will pay that amount unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

       

6. PROPRIETARY RIGHTS AND LICENSES.

    

   1. Reservation of Rights; Ownership of Intellectual Property. 

      Subject to the limited rights expressly granted hereunder, Provider, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the DaVinci Locks, Services and Content, including all of their related Intellectual Property and Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein. All Intellectual Property and related Intellectual Property Rights and other rights relating to the DaVinci Locks and Services and any modifications thereof or derivative works based in whole or in part thereon (whether or not authorized) will at all times be the exclusive property of Provider and its Affiliates, and all use of such rights will accrue to the benefit of Provider and its Affiliates. Customer will not challenge Provider’s and its Affiliates’ title to such Intellectual Property or Intellectual Property Rights, oppose any registration thereof, or challenge the validity or enforceability of this Agreement. Customer agrees to use reasonable efforts to protect Customer’s and its Affiliates’ Intellectual Property Rights and to cooperate in their efforts to protect their Intellectual Property Rights. Customer will promptly notify Provider in writing if Customer has knowledge of any infringement, violation or misappropriation of Provider’s Intellectual Property Rights.

       

   2. Access to and Use of Content. 

      Customer has the right to access and use applicable Content subject to the terms of applicable Orders, this Agreement and the Documentation.

       

   3. License by Customer to Provider. 

      Customer grants Provider, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Provider Applications, each as appropriate for Provider to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer choosesto use a Non-Provider Application with a Service, Customer grants Provider permission to allow the Non-Provider Application and its provider to access Customer Data and information about Customer’s usage of the Non-Provider Application as appropriate for the interoperation of that Non-Provider Application with the Service. Subject to the limited licenses granted herein, Provider acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Provider Application or such program code.

       

   4. License by Customer to Use Feedback. 

      Customer grants to Provider and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Provider’s or its Affiliates’ services.

       

   5. Audit Rights. 

      Customer agrees to keep complete, correct and detailed records relating to the Customer’s use of DaVinci Locks and the Services and Customer’s compliance with the terms and conditions of this Agreement. During the term of this Agreement and for a period of three (3) years following termination or expiration of this Agreement for any reason, (i) upon reasonable request by Provider, Customer will submit to Provider a written report, certified by an authorized representative of Customer, listing each DaVinci Lock or other device with which Customer is then using the Service or has used the Service within the preceding twelve (12) months, and specifying for each the type, its manufacturer, serial number, and the self-storage or other location at which the lock or device is or was in use with the Service; and (ii) if Customer fails to provide such report within thirty (30) days of Provider’s request, or if Provider has reasonable basis to suspect, based on the contents of any such report or otherwise, that Customer is not in compliance with the terms and conditions of this Agreement relating to the Customer’s use of the DaVinci Locks and Services, then Provider or its designated representative shall have the right, upon at least thirty (30) days prior written notice to Customer, to review and audit Customer’s and its Affiliates’ books, records and facilities relating to their compliance with the terms and conditions of this Agreement.

       

7. CONFIDENTIALITY

    

   1. Definition of Confidential Information. 

      “

      Confidential Information

      ” means all information disclosed by a party (“

      Disclosing Party

      ”) to the other party (“

      Receiving Party

      ”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Provider includes the Services and Content, and the terms and conditions of this Agreement and all Orders accepted by Provider (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Provider services.

       

   2. Protection of Confidential Information. 

      As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protectthe confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Provider may disclose the terms of this Agreement and any applicable Order to a contractor or Non-Provider Application provider to the extent necessary to perform Provider’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

       

   3. Compelled Disclosure. 

      The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

       

   4. Privacy Policy. 

      Provider’s data practices are subject to Provider’s Privacy Policy at 

      Privacy Policy

      . Customer agrees that Provider can collect and use any information submitted by Customer and its Users through the Service in accordance with the Privacy Policy.

       

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIESAND DISCLAIMERS

    

   1. Representations. 

      Each party represents that it has validly entered into this Agreement and has the legal power to do so.

       

   2. Provider Limited Warranties. 

      Provider warrants that during an applicable subscription term (a) the Services will perform materially in accordance with the terms of this Agreement, an Order accepted by Provider and the applicable Documentation, and (b) Provider will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

       

   3. Disclaimers. 

      If Customer relies on the Services or Content, Customer does so solely at Customer’s own risk. Customer acknowledges and agrees that the Service enables Provider to send text messages to Customer’s storage facility renters, which include sensitive information, including unlock codes. Customer represents that it has obtained all necessary permissions for Provider to send text messages to Customer’s storage facility renters. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, CONCERNING THE SERVICE OR THE DAVINCI LOCKS, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

       

9. MUTUAL INDEMNIFICATION

    

   1. Indemnification by Provider. 

      Provider will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s Intellectual Property Rights (a “

      Claim Against Customer

      ”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Provider in writing of, a Claim Against Customer, provided Customer (a) promptly gives Provider written notice of the Claim Against Customer, (b) gives Provider sole control of the defense and settlement of the Claim Against Customer (except that Provider may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Provider all reasonable assistance, at Provider’s expense. If Provider receives information about an infringement or misappropriation claim related to a Service, Provider may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Provider’s warranties under “Provider Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Provider, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order for which there is no charge;or (IV) a Claim Against Customer arises from Content, a Non-Provider Application or Customer’s breach of this Agreement, the Documentation or applicable Orders.

       

   2. Indemnification by Customer. 

      Customer will defend Provider and its Affiliates against any claim, demand, suit or proceeding made or brought against Provider by a third party (a) alleging that the combination of a Non-Provider Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s Intellectual Property Rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non-Provider Application provided by Customer (each a “

      Claim Against Provider

      ”), and will indemnify Provider from any damages, attorney fees and costs finally awarded against Provider as a result of, or for any amounts paid by Provider under a settlement approved by Customer in writing of, a Claim Against Provider, provided Provider (A) promptly gives Customer written notice of the Claim Against Provider, (B) gives Customer sole control of the defense and settlement of the Claim Against Provider (except that Customer may not settle any Claim Against Provider unless it unconditionally releases Provider of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Provider arises from Provider’s breach of this Agreement, the Documentation or applicable Orders.

       

10. LIMITATION OF LIABILITY

     

    1. Limitation of Liability. 

       IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PROVIDER TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

        

    2. Exclusion of Consequential and Related Damages. 

       IN NO EVENT WILL PROVIDER OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF PROVIDER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF CUSTOMER’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

        

11. TERM AND TERMINATION

     

    1. Term of Agreement. 

       This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

        

    2. Term of Purchased Subscriptions. 

       The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, at the end of the initial subscription term subscriptions will automatically renew on a month-to-month basis, unless either party gives the other written notice (email acceptable) at least 20 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order, for Orders accepted by Provider, renewal of promotional or one-time priced subscriptions will be at Provider’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

        

    3. Termination. 

       A party may terminate an Order or this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of an Order will not result in a termination of this Agreement or affect other Orders then in effect. Termination of this Agreement will result in the termination of all Orders the in effect. For the avoidance of doubt, Customer’s failure to pay when due any undisputed amount owed to Provider or an Authorized Reseller (subject to any applicable cure period set forth in a separate written agreement between Customer and the applicable Authorized Reseller, if applicable) will constitute a material breach of this Agreement.

        

    4. Refund or Payment upon Termination. 

       If this Agreement is terminated by Customer in accordance with the “Termination” section above, Provider will refund Customer any prepaid fees paid to Provider for Services covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by Provider in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Orders to the extent permittedby applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Provider or an Authorized Reseller for the period prior to the effective date of termination.

        

    5. Surviving Provisions. 

       The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Integration with Non-Provider Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Provider retains possession of Customer Data.

        

12. GENERAL PROVISIONS

     

    1. Export Compliance. 

       The Services, Content, other Provider technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Provider and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or as may be updated from time to time at or in violation of any U.S. export law or regulation.

        

    2. Federal Government End Use Provisions. 

       Provider provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015.

        

    3. Force Majeure. 

       The failure in performance of any obligation assumed hereunder by either party (other than the obligation to pay funds when due) shall not be deemed a breach of this Agreement if such failure arises from a force majeure event. For purposes of this Agreement, force majeure events shall include war, fire, flood, strike, labor trouble, riot, suspensions, shutdowns, or other acts of domestic or foreign governmental authorities, acts of God, unforeseen delays in shipping, including foreign or domestic ports, pandemic or any other contingencies beyond the reasonable control of the Party interfering with the production, supply, or transportation of the Products. Provider shall give Customer prompt written notice of any force majeure event and an estimate of the resulting delay. If Provider is delayed or hindered in performing its obligations hereunder due to a force majeure event for a period exceeding sixty (60) days, Customer may terminate the affected Order upon written notice to Provider without further liability under such Order except to pay for DaVinci Locks and Services received prior to the date of termination.

        

    4. Entire Agreement and Order of Precedence. 

       This Agreement (and the Orders entered into hereunder) is the entire agreement between Provider and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

        

    5. Relationship of the Parties. 

       The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

        

    6. Third-Party Beneficiaries. 

       There are no third-party beneficiaries under this Agreement.

        

    7. Waiver. 

       No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

        

    8. Severability. 

       If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

        

    9. Assignment. 

       Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Provider’s prior written consent. In addition, if Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of Provider, then Provider may terminate this Agreement upon written notice. In the event of such a termination, Provider will refund Customer any prepaid fees for Services covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

        

    10. Manner of Giving Notice. 

        Provider may provide any notice to Customer under this Agreement by sending a message to the email address associated with Customer’s account. Notice provided by email will be effective when Provider sends the email. It is Customer’s responsibility to keep its account contact email address current. Customer will be deemed to have received any email sent to the email address then associated with its account when Provider sends the email, whether or not Customer actually receives it. Notices provided to Provider by Customer under this Agreement must be sent either by: (i) email transmission to 

        legal@davincilock.com

         or (ii) by personal delivery, overnight courier or registered or certified mail to Provider’s principal place of business identified on its website, attention Legal Department. Provider may update its address for notices by posting a notice on Provider’s website or by sending a message to the email address then associated with Customer’s account. Notices sent by Customer to Provider are effective upon receipt by Provider. Notwithstanding the foregoing, billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer.

         

    11. Agreement to Governing Law and Jurisdiction. 

        This Agreement and all disputes and controversies arising in connection herewith or relating hereto will be governed and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of laws rules that may result in the application of the laws of any other state. Any claim, action or proceeding relating to this Agreement will be brough exclusively in the state or federal courts located in the State of North Carolina and each party hereby irrevocably consents to the exclusive jurisdiction of such courts in connection with any such claim, suit or proceeding.

         

    12. Service Adjustments; Amendment. 

        Provider reserves the right to change or discontinue the Services or change or remove features or functionality of the Services from time to time; provided that Provider will use commercially reasonable efforts to provide Customer at least 120 days’ prior written notice of any discontinuation or change or removal of features or functionality that would reasonably be expected to materially and adversely affect Customer’s access to or use of the Services. This Agreement may be amended from time to time by Provider upon written notice to Customer. The then-current version of this Agreement is available to Customer at Provider’s website or via the Service. Customer acknowledges and agrees that the posting of amendments to or amended or restated versions of this Agreement at Provider’s website, on the Service or by email message will constitute written notice to Customer of such amendments. By continuing to use the Service after the effective date of any amendments to this Agreement, Customer agrees to be bound by the amended terms.