TERM AND TERMINATION

• Term and Renewal: Your initial subscription term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew.

• Notice of Non-Renewal: Unless otherwise specified in your Order, to prevent the renewal of your subscription, either you or we must provide a written notice of non-renewal to support@LEAP360.com at least 30 days before the renewal date.

• Termination for Cause: Either party may terminate this Agreement for cause, as to any or all Subscription Services:

  1. upon thirty (30) days' notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
  2. immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

  We may also terminate this Agreement for cause upon thirty (30) days' notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

• Suspension

  1. Suspension for Prohibited Acts

     We may suspend any User's access to any or all Subscription Services without notice for:

     1. use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement,

     2. use of the LEAP360 email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or

     3. repeated instances of posting or uploading material that infringes or is alleged to infringe the copyright or trademark rights of any person or entity.

     We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.

  2. Suspension for Non-Payment

     We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service. After 30 days of non-payment, the account will be closed, and data becomes non-recoverable.

  3. Suspension for Present Harm

     If your website, or use of, the Subscription Service:

     1. is being subjected to denial-of-service attacks or other disruptive activity,

     2. is being used to engage in denial-of-service attacks or other disruptive activity,

     3. is creating a security vulnerability for the Subscription Service or others,

     4. is consuming excessive bandwidth, or

     5. is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.

     We will make commercially reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

  4. Suspension and Termination of Free Services

     We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

  5. Effect of Termination or Expiration

     If your paid subscription is terminated or expires, you will continue to be subject to this Agreement for as long as you have access to a LEAP360 account. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and LEAP360 Content. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are non-refundable.

INTELLECTUAL PROPERTY

• Agreement for Access:

  This Agreement grants you access to and usage rights of the Subscription Service, but does not confer any software license. The Subscription Service is safeguarded by intellectual property laws and is the property of us or our licensors (if any). All ownership rights to the Subscription Service remain with us, and you agree not to copy, rent, lease, sell, distribute, or create derivative works based on the LEAP360 Content or the Subscription Service in whole or in part, by any means, unless expressly authorized in writing by us.

• Feedback:

  We encourage customers to provide feedback, suggestions, and comments on the Subscription Service. By doing so, you acknowledge that all such comments and suggestions will be non-confidential, and we retain the rights to use and incorporate them into the Subscription Service without providing payment or attribution to you..

CONFIDENTIALITY

• The Receiving Party will:

  • Protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care,
  • Not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement,
  • Not disclose Confidential Information of the Disclosing Party to any third party (except those third-party service providers used by us to provide some or all elements of the Subscription Service and except for your LEAP360 Solutions Partner bound by confidentiality obligations), and
  • Limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

• The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule, or regulation, subpoena, or legal process. However; provided, however, that

  • The Receiving Party will provide the Disclosing Party with prompt notice of any request that it discloses Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate;
  • The Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party's cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and
  • In no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.

Indemnification: You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of:

1. Unauthorized or illegal use of the Subscription Service by you or your Affiliates,
2. Your or your Affiliates' noncompliance with or breach of this Agreement,
3. Your or your Affiliates' use of Third-Party Products, or
4. The unauthorized use of the Subscription Service by any other person using your user information.

Disclaimers; Limitation of Liability

1. Performance Warranty We warrant that:

   1. The Subscription Service will be provided in a manner consistent with generally accepted industry standards, and
   2. We will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided, however, this warranty will not apply to you if you only use the Free Services.

   In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period.

   We will not have any obligation or liability under this section if the non-conformance is caused by or based on:

   1. Any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us,
   2. Modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or 
   3. Use of the Subscription Service in violation of or outside the scope of this Agreement.

   This section states our entire liability and your sole and exclusive remedy with respect to any claim provided under this section.

2. Disclaimer of Warranties: Except as set forth in the 'performance warranty' section and without limiting our obligations in the 'protection of customer data' section of this agreement, we and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security, accuracy or completeness of the subscription service, data synched to or made available from the subscription service, Leap360 content, for any purpose.

   Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the subscription service, Leap360 content, are provided "as is" without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the subscription service including all implied warranties or conditions of merchantability, fitness for a particular purpose, title, and non-infringement.

3. No Indirect Damages: To the extent permitted by law, in no event will either party or its affiliates be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities arising out of or related to this agreement, whether an action is in contract or tort and regardless of the theory of liability.

4. Limitation of Liability: Except for your liability for payment of fees, your liability arising from your obligations under the 'indemnification' section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party or its affiliates is determined to have any liability to the other party, its affiliates or any third party, the parties agree that the aggregate liability of a party and its affiliates will be limited to a sum equal to the total amounts paid or payable for the subscription service in the twelve month period preceding the event giving rise to a claim.

5. Third-Party Products: We and our affiliates disclaim all liability with respect to third-party products that you use. Our licensors will have no liability of any kind under this agreement.

6. Free Services: We and our affiliates disclaim all liability with respect to free services and free service period that you use. Our licensors will have no liability of any kind under this agreement.

7. Agreement to Liability Limit You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you.

SURVIVAL: The following sections will survive the expiration or termination of this Agreement: 'Definitions', 'Fees', 'Prohibited and Unauthorized Use', 'Early Cancellation', 'Termination for Cause', Suspension for Prohibited Acts', 'Suspension for Non-Payment', 'Suspension for Present Harm', Suspension and Termination of Free Services', 'Effect of Termination or Expiration', 'Intellectual Property', 'Customer's Proprietary Rights', 'Confidentiality', 'Publicity', 'Indemnification', 'Disclaimers; Limitations of Liability', 'Miscellaneous' and 'Contracting Entity and Applicable Law'. Additionally, the 'Retrieval of Customer Data' sections.

Precedence: In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.

ALPHA / BETA SERVICES If we make alpha or beta access to some or all of the Subscription Service (the “Alpha/Beta Services”) available to you:

• The Alpha/Beta Services are provided “as is” and without warranty of any kind.
• We may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice.
• We will not be liable to you for damages of any kind, except in respect of losses that cannot be legally limited or excluded under law, related to your use of the Alpha/Beta Services.
• If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well.
• We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.

SERVICE UPTIME COMMITMENT

For the purposes of this 'Service Uptime Commitment' section, the following definitions shall apply:

• "Priority 1" means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g., crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.

• "Excluded" means the following:

  1. Unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes, or other labor problems (other than those involving our employees), or any other force majeure event or factors.
  2. Any problems resulting from Customer's combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service.
  3. Interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our datacenter as measured by our third-party website availability monitoring provider.
  4. Any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
• "Service Uptime" means (total hours in a calendar month - unscheduled maintenance which causes unavailability - Priority 1 issue durations - scheduled maintenance - Excluded) / (Total hours in a calendar month - scheduled maintenance - Excluded) X 100%.

We will use commercially reasonable efforts to meet a Service Uptime of 99.95% for our Subscription Service in a given calendar month. All availability calculations will be based on our system records.

Notwithstanding anything to the contrary in this Agreement, as Customer's sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.95% in a given calendar month, Customer will be entitled to receive a credit equal to the pro-rated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Service Uptime fell below 99.95%, which credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Customer requests such credit within twenty (20) days of the end of the relevant calendar month in writing.

Notwithstanding anything to the contrary in the Agreement or this section, this 'Service Uptime Commitment' section does not apply to our Free Services.