Subscription Agreement

The Contract (as defined below) is made up of the following:
(a) Order Form;
(b) this Subscription Agreement;
The Order Forms and the Subscription Agreement, together, form the “Contract” between the parties hereto pertaining to Supplier’s provision of Services (as defined herein). Execution of this Order Form shall mean that the parties have agreed to the provision of the Contract as a whole.
If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
By signing this Order Form the parties agree to be bound by the Contract. The parties may sign this Order Form by electronic signature, provided that the parties use a digital signature using cryptographic systems that include, or associate, the signature with a message to confirm its integrity and authenticity (e.g., DocuSign). If a party chooses to use this method of signature, the parties acknowledge and agree that such method of signature shall be as conclusive of that party’s intention to be bound by the Contract. The parties may sign this Order Form in counterparts, each of which may be shared electronically between the parties, and which, together, shall form a binding agreement.
Notwithstanding anything to the contrary set forth in the Contract, the parties agree that the Customer’s use of any third party services is subject to the agreement of the terms outlined within the MirrorWeb Legal Center.

1. DEFINITIONS AND INTERPRETATION

1.1 DEFINITIONS

In addition to any terms defined throughout this Contract, the following terms shall have the meanings set forth below:

Affiliate: any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity.

Applicable Law: means all laws, rules, regulations and ordinances applicable in United States of America.

Business Day: any day other than a Saturday, Sunday or a federal holiday in the United States of America.

Business Hours: 9:00 am to 5:00 pm local U.S. eastern time, each Business Day.

Change: an amendment to the scope, nature, volume or execution of the Services under the Contract.

Change Control Note: the written record of any Change agreed or to be agreed by the parties pursuant to the Change Control Procedure.

Change Control Procedure: the procedure for agreeing to a Change, as set out in clause 3.

Confidential Information: in relation to either party making the disclosure (the “Disclosing Party”) any and all information (in any format) that is marked or described as proprietary or confidential when disclosed, or that the party receiving or learning the information (the “Receiving Party”) knows or ought to know, given the nature of the information, is or should be treated as confidential, including the following: information which relates to the business, financial affairs, customers, suppliers, operations, processes, products, software, services, developments, trade secrets, know-how, designs and price lists of the first party (or any of its Affiliates), but not including any information that: (i) is or becomes publicly available other than by an act or omission of the Receiving Party; (ii) is or becomes available without an obligation of confidentiality from a third party having the legal right to disclose the information; or (iii) is already in the Receiving Party’s possession before disclosure in documented form without an obligation of confidentiality.

Content: all electronic data and/or digital content collected by Supplier from any website(s) and/or social media account(s) owned or operated by Customer and identified in the Order Form (or as otherwise agreed in writing between the parties) for archiving and monitoring as part of the Services.

Contract Date: is the last date of execution of the Order Form to which these Terms are attached.

Control: the beneficial ownership of more than 50% of the issued voting securities of a company or the legal power to direct or cause the direction of the general management of the company. Controls, Controlled and the expression ‘change of Control’ shall be construed accordingly.

Order Form: the form to which this Subscription Agreement is attached and which is referenced therein, indicating the Services that Customer has agreed to engage Supplier to provide hereunder.

Customer: the person identified as such in the Order Form.

Documentation: document(s) made available to Customer by Supplier prior to the date on which the Contract commences which sets out a description of, and user instructions for, the Services.

Initial Term: a period of 12 months beginning on the Contract Date.

Intellectual Property Rights: any patents (including rights in and/or to inventions), copyright and related rights, rights in software, database right, moral rights, design rights (whether registered or unregistered), trademarks, service marks, trade and business names (including the goodwill attached thereto), domain names and website addresses, rights in and to Confidential Information, unregistered designs or, where relevant, any application for such rights, or other intellectual property rights, in each case subsisting at any time in any part of the world and any similar or analogous rights to any of these rights, whether arising or granted under Applicable Law or in another jurisdiction.

Multi-Year Term: Initial term, where a period greater than 12 months (to be specified in the Order Form) has been agreed, beginning on the Contract Date.

‍Terms: The terms and conditions of this Subscription Agreement, as modified by the Order Form, if any such modifications are agreed between the parties therein.

Services: the services described in the Order Form which Supplier has agreed to perform hereunder.

Software: the online software developed by or on behalf of Supplier to capture and archive online website and social media content, which is licensed by Supplier as part of the Services.

Special Terms: any special terms which apply to the Contract as set out in the Order Form.

Subscription: a subscription to receive the Services for the Term hereunder.

Subscription Fees: the amounts payable by Customer to Supplier pursuant to the Order Form and in accordance with clause 8.

Supplier: MirrorWeb Limited (UK Company Number 08072284).

Term: The Initial Term together with any subsequent Renewal Periods.

Virus: anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

1.2 INTERPRETATION

(a) Except where expressly stated otherwise, the Contract supersedes all other terms and conditions and agreements between the parties with respect to the provision of Services, including any that may be implied by trade, custom, practice or course of dealing.

(b) Any words following the terms “including” or any similar expression shall be construed as illustrative and shall be construed to mean “including but not limited to”.

2. COMMENCEMENT AND TERM

2.1 The term of the Contract shall commence on the Contract Date and shall continue for the Initial Term. Thereafter, the Contract shall automatically renew for successive periods of 12 months (each a Renewal Period), unless:

(a) either party notifies the other party of its intent not to renew, in writing, at least 30 days before the end of the Initial Term or then-current Renewal Period, in which case the Contract shall terminate upon the expiry of the Initial Term or Renewal Period (as applicable); or

(b) the Contract is otherwise terminated in accordance with the provisions of these Terms.

(c) a multi-year term agreement has been entered into. Under these conditions, services will continue to be invoiced on an annual basis. Please note that the minimum order value for the annual contract cannot be less than the previous year. Termination notice must be provided with 60 days notice prior to the annual review date. MirrorWeb reserves the right to invoice for the discount benefited for a multi-year term.

3. CHANGES TO THE SUBSCRIPTION

3.1 Customer may submit to Supplier a written request for a Change in accordance with this clause 3, but no Change will come into effect until a Change Control Note has been signed by the authorized representatives of each party.

3.2 Customer may submit to Supplier a written request for a Change containing as much information as is necessary to enable Supplier to prepare a Change Control Note.

3.3 Supplier shall evaluate Customer’s request and shall either:

(a) issue to Customer a Change Control Note; or

(b) provide Customer with written notice that it has rejected Customer’s request (a “Rejection Notice”).

3.4 The Change Control Note shall provide Customer with details of the effect of the proposed Change with respect to:

(a) the Services;

(b) the Subscription Fees; and

3.5 If, following Customer’s receipt of the Change Control Note pursuant to clause 3.3:

(a) the parties agree to the terms of the relevant Change Control Note, and execute the Change Control Note, then that Change Control note will become an amendment to the Contract; or

(b) the Customer does not agree to any term of the Change Control Note, and does not sign the Change Control Note, the Contract shall continue in force without amendment.

3.6 If Customer changes its Subscription pursuant to this clause 3 part way through the Initial Term or any Renewal Period, the applicable Subscription Fees shall be calculated on a pro-rated basis for the remainder of the Initial Term or the then-current Renewal Period, as applicable. Invoices from Supplier after the date of execution of a Change Control Note shall reflect the new pricing applicable to the modified Services.

3.7 If Supplier refuses Customer’s request for a Change by issuing Customer a Rejection Notice pursuant to clause 3.3(b), then Customer shall be entitled to provide Supplier written notice of its intent to terminate the Contract provided that (i) such notice is received by Supplier not more than 30 days after the date of the Rejection Notice; and (ii) the Change request was a reasonable extension or modification to the Services and within Supplier’s reasonable capability to agree to.

4. SERVICES

4.1 During the Term, Supplier shall provide the Services to Customer in accordance with these Terms.

4.2 Supplier will, as part of the Services and at no additional cost to Customer, provide Customer with:

(a) an initial training webinar (which may be pre-recorded);

(b) online customer support services during Business Hours subject to the request for support being submitted by e-mail to support@mirrorweb.com or via the helpdesk, accessible via the portal.

(d) access to account management.

4.3 Customer may make any special services requests to the helpdesk or through the portal, and Supplier shall evaluate each such request. Services not in the scope of the Order Form may require a Change.

5. CONTENT

5.1 As between the parties, Customer shall own all right, title and interest in and to all of the Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Content. Content will be stored on a Customer-designated server or set of servers, and Customer agrees that Supplier has no control nor liability for the Content once placed on such server(s). Customer represents and warrants to Supplier that it has all rights, licenses, and permissions and has obtained all required consents to allow Supplier to perform the Services hereunder.

5.2 Subject to the provisions of clause 13.3(c), Customer grants to Supplier, to the extent necessary to provide the Services and comply with its obligations under the Contract, a non-exclusive, non-sublicensable (except as permitted herein), non-transferable (except as permitted herein) license for the Term to access and use the Content to provide the Services.

5.3 In the event that any Content is corrupted or lost as a result of any default by Supplier, Customer may require Supplier (at Supplier’s expense) to restore or procure the restoration of the Content from the last available back-up held by Supplier, if such backup exists. This shall be Customer’s sole and exclusive remedy in respect of such corruption or loss of Content.

6. SUPPLIER’S OBLIGATIONS

6.1 Throughout the Term, Supplier shall:

(a) provide the Services with reasonable skill and care;

(b) maintain sufficient resources and any authorization required by Applicable Law to provide and/or perform the Services;

(d) maintain a contingency plan for disaster recovery and periodic testing of backup facilities,

6.2 Notwithstanding the provisions of clause 6.1, Supplier shall not be liable for breach of its obligations under clauses 6.1 (a) to (d) (inclusive) to the extent that (i) any non-conformance with same is caused by Customer’s use of the Services contrary to Supplier’s reasonable instructions; (ii) there have been modification or alteration to any Software or the Services other than by Supplier or its duly authorized contractors or agents; (iii) Customer contributed to the default: or (iv) Customer is in breach of this Agreement.

6.3 SUPPLIER PROVIDES THE SERVICES AS IS, AND AS AVAILABLE. SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, IMPLIED, STATUTORY OR SPECIFIC, WITH RESPECT TO THE SERVICES, INCLUDING THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE CONTENT WILL BE AVAILABLE, OR WITH RESPECT TO DATA AVAILABILITY OR QUALITY. SUPPLIER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ITS SERVICES, AND SOFTWARE, INCLUDING WARRANTIES OF NON-INFRINGEMENT, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES HEREBY SPECIFICALLY DISCLAIM ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY.

6.4 SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND CONTENT MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.

6.5 Supplier shall not override, change or destroy any archived Content except in connection with the migration of the archive to another storage device and then only after a copy of the Content has been placed on that other storage device.

7. CUSTOMER’S OBLIGATIONS

7.1 Throughout the Term, Customer shall:

(a) co-operate with Supplier in all matters relating to the Services and provide Supplier with access to the Content, white listing on the applicable webserver(s), and all information as may reasonably be required by Supplier, to enable Supplier to perform the Services;

(b) comply with all Applicable Law with respect to its activities under and/or in connection with the Contract, its websites and social media pages, and its business;

(c) obtain all consents and permissions it requires to create and direct the creation of the archives of the websites/social media pages it directs Supplier to archive hereunder, and those it requires to allow Supplier to process any personal information or other personally identifiable data that may be contained or part of the Content, in each case in accordance with all Applicable Law; and

(d) carry out all other Customer responsibilities set out in the Contract; and be solely responsible for procuring and maintaining that its website(s) and social media account(s) are connected to the internet at all times.

7.2 If Supplier’s performance of its obligations under and/or in connection with the Contract is prevented or delayed by any act or omission of Customer, its directors, officers, personnel, agents or subcontractors, Supplier shall:

(a) be entitled to adjust any agreed timetable or delivery schedule as reasonably necessary;

(b) not be liable for any costs, charges or losses sustained or incurred by Customer that arise directly or indirectly from such prevention or delay;

(d) be entitled to recover any additional costs, charges or losses Supplier sustains or incurs that arise directly or indirectly as a result of or in connection with such prevention or delay.

7.3 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(d) promotes violence or hate;

(e) would be considered discriminatory pursuant to any Applicable Law; or

(f) causes damage or injury to any person or property,

7.4 Supplier reserves the right, without liability to Customer or any other person, to disable Customer’s access to or refuse to provide the Services in respect of, any material that breaches the provisions of clause 7.

7.5 Customer shall not:

(a) except to the extent expressly permitted hereunder or as permissible pursuant to Applicable Law, do or attempt or allow any third party to do or attempt any of the following: copy, modify, duplicate, create derivative works of, frame, mirror, publish, download, display, transmit, or distribute all or any portion of the Software or Services in any form or media, by any means;

(b) do or attempt or allow any third party to do or attempt to reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form all or any part of the Software;

(c) do or attempt or allow any third party to do or attempt to access all or any part of the Services or the Software in order to build a product or service which competes with the Services;

(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, or allow any third party to do the same;

(e) direct or cause Supplier to place any Content at a location that is subject to embargo, sanctions or other restrictions pursuant to guidance or regulations issued by the Treasury Department, Commerce Department or the State Department, or as otherwise restricted pursuant to Applicable Law.

7.6 Customer shall use reasonably commercial efforts to prevent any unauthorized access to, or use of, the Services and the Software and, in the event it discovers any such unauthorized access or use, it will promptly notify Supplier.

7.7 Customer is responsible for the confidentiality and safety of its credentials issued to it to log into and access and use the Software. Customer shall not allow the sharing of credentials among different persons, and shall notify Supplier immediately upon coming to learn that any login credentials of its personnel have been compromised. Customer is responsible for all activity on the Software under its credentials, whether such activity is performed by its personnel or not, unless and to the extent that Supplier is at fault in disclosing the credentials to unauthorized third parties

8. SUBSCRIPTION FEES AND PAYMENT

8.1 Customer shall pay the Subscription Fees to Supplier as set out in the Order Form and in accordance with this clause 8.

8.2 Supplier shall invoice Customer:

(a) on the Contract Date for the Subscription Fees payable in respect of the Initial Term; and

(b) subject to clause 8.6, not less than 30 days prior to each anniversary of the Contract Date for the Subscription Fees payable in respect of the next Renewal Period, unless this Agreement is terminated as permitted herein.

8.3 Customer shall pay the Subscription Fees in full and cleared funds within 7 days of the date of invoice, and to the bank account, specified in the relevant invoice.

8.4 If Customer fails to make payment of any invoice issued under the Contract within 7 days of the due date for payment, then without prejudice to any other rights and remedies of Supplier:

(a) Supplier may suspend all or part of the Services until payment is made in full; and

(b) Provider may charge Customer interest on the past due amounts at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law.

8.5 Unless otherwise provided for in the Order Form, all amounts payable under the Contract shall be payable in USD, are non-cancellable and non-refundable, and are exclusive of any applicable taxes. Supplier will include all applicable taxes payable by Customer in its invoices, and disburse such amounts, once Customer pays them, to the applicable taxing authority.

8.6 Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 90 days’ prior written notice to Customer.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Supplier and/or its licensors own and shall retain ownership of all Intellectual Property Rights in and to the Software and the Services and any modifications and enhancements made thereto from time to time.

9.2 Except as expressly provided in the Contract, Customer shall not have the right to use, or acquire any other right, license, title or interest in or to any Intellectual Property Rights belonging or licensed to Supplier, including in respect of the Software or the Services.

9.3 Supplier hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted herein), right and license during the Term, from within the United States only, to access and use the Software, as made available by Supplier to Customer hereunder, in accordance with the Documentation and the terms of this Contract, solely for its internal business purposes pertaining to archiving its websites and social media pages set forth in the Order Forms hereunder.

10. CONFIDENTIALITY

10.1 Each party undertakes that it shall not, at any time, use or disclose any Confidential Information of the other party or its Affiliates, except with the prior written consent of the Disclosing Party or as permitted by clause 10.2.

10.2 Either party may, strictly for the purposes of performing and/or exercising its rights and/or obligations under and/or in connection with the Contract, use the other party’s Confidential information and/or disclose the other party’s Confidential Information, under obligations of confidentiality, to that party’s directors, officers, employees, agents, subcontractors and/or professional advisors, provided that it remains responsible for the acts or omissions of such persons as if they were its own.

10.3 If the Receiving Party is subject to a court order, subpoena or other order from a governmental authority requesting disclosure of the Confidential Information of the Disclosing Party, it shall promptly notify the Disclosing Party of this request, unless it cannot do so pursuant to the request or Applicable Law, and shall provide reasonable assistance to the Disclosing Party in its efforts to quash or limit the disclosure. If required, the Receiving Party shall only disclose that amount of information required of it pursuant to the court order, subpoena or other governmental request as it is required to pursuant to advice from its counsel.

11. INDEMNITY

11.1 Customer shall defend, indemnify and hold harmless Supplier and its Affiliates, and each of their employees, officers, directors, shareholders, and representatives from and against claims, actions, proceedings, losses, damages, expenses and costs, including legal costs and attorneys’ fees (each, an “Action”) arising out of or in connection with Customer’s use of the Services or Documentation, including relating to Content, provided that:

(a) Customer is given prompt notice of any such Action;

(b) Supplier provides reasonable cooperation to Customer and its advisors in the defense and settlement of such Action, at Customer’s expense; and

11.2 Supplier shall defend Customer, its officers, directors, shareholders, and representatives from and against any claim that Customer’s use or receipt of the Services (including the Software or Documentation) infringes the intellectual property rights of the claiming third party, and shall indemnify Customer from and against any amounts awarded against Customer in judgment or settlement of such claims, provided that:

(a) Supplier is given prompt notice of any such claim;

(b) Customer provides reasonable cooperation and assistance to Supplier and its advisors in the defense and settlement of such claim, at Supplier’s expense; and

11.3 In the defense or settlement of any claim subject to indemnity hereunder, Supplier may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract immediately upon written notice to Customer.

11.4 The indemnity set out in clause 11.2 and the remedies set forth in clause 11.3 set out Customer’s sole and exclusive rights and remedies and Supplier’s entire obligation and liability, with respect to infringement or misappropriation of any Intellectual Property Rights of third parties.

12. LIMITATION OF LIABILITY

12.1 Nothing in the Contract shall limit or exclude a party’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its directors, officers, personnel, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

12.2 SUBJECT TO CLAUSE 12.1, SUPPLIER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), MISREPRESENTATION, OR ANY OTHER CAUSE OF ACTION, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR OTHER SIMILAR DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, LOSS OF OPPORTUNITY, REPUTATIONAL DAMAGE, FOR THE LOSS, INACCURACY OR CORRUPTION OF DATA, OR FOR UNAVAILABILITY, INTERRUPTION OR FAILURE OF SERVICES OR SOFTWARE, NO MATTER HOW ARISING.

12.3 SUBJECT TO THE PROVISIONS OF CLAUSES 12.1 AND 12.2, SUPPLIER’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL BE THE AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CAUSE OF ACTION ARISES.

12.4 In addition to any other limits set forth herein, Supplier shall not be liable for any losses, damages, expenses, costs or other liability arising in connection with or caused by:

(a) Customer’s use of the Services contrary to any instructions provided by Supplier from time to time, or as set forth in the Documentation;

(b) any modification or alteration to the Services made by a person other than Supplier (or on its behalf);

(c) Customer’s use of the Services, Software or Documentation following written notice from Supplier or a third party of any actual or potential infringement; or

(d) The combination of the Services, Software or Documentation with any other materials not provided by Supplier hereunder or specifically mentioned in the Documentation as permissible.

13. TERMINATION

13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving prior written notice to the other party if:

(a) the other party is in material breach of any term of the Contract and, if capable of remedy, fails to remedy the same within 30 days of receiving notice of such breach; or

(b) the other party files for liquidation or dissolution, or is unable to pay its debts as they become due in the ordinary course.

13.2 Upon expiration or termination of the Contract for any reason:

(a) all licenses granted under the Contract shall immediately terminate, save in respect of the license granted to Supplier pursuant to clause 5.2which shall remain in effect until the expiry of the period described in clause 13.2(c);

(b) subject to clause 13.2(c), each party shall return or destroy and make no further use of any equipment, property, Confidential Information and other items (and all copies of them) belonging to the other party;

(c) Notwithstanding the provisions of clause 5.2, Supplier will make available to Customer the Content for viewing and download/migration purposes only for a period of 30 days after the date of termination or expiry (with the costs of any migration or export of any Content being the responsibility of Customer) after which Supplier shall destroy or otherwise render all such Content unreadable and, if requested by Customer, certify the same to Customer in writing; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced, and any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect, including clauses 1, 5.2, 6.3, 6.4, 8.1, 9, 10, 11, 12, 13.2(c), this clause 13.2(d), and clauses 16, 17 and 18.

14. FORCE MAJEURE

14.1 Supplier shall have no liability if it is prevented from or delayed in performing its obligations under the Contract by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemics, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm or default of suppliers or sub-contractors. Supplier agrees to make reasonable attempts to notify Customer of such an event and its expected duration.

15. ASSIGNMENT

15.1 Customer shall not, without the prior written consent of Supplier, assign this Agreement or any of its rights or obligations hereunder without first obtaining Supplier’s prior written consent. A change of Control of Customer shall be considered an assignment hereunder.

15.2 Supplier may freely assign its rights hereunder, including assigning the Contract as a whole, and may delegate its obligations hereunder to third parties without restriction.

16. GENERAL

16.1 No amendment of the Contract shall be effective unless it is in writing, expressly stated to vary and supersede the terms of the Contract, and signed by both parties.

16.2 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver or abandonment of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.3 If any provision (or part of a provision) of the Contract is found by any court to be invalid, unenforceable or illegal, the other provisions shall remain in full force and effect. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

16.4 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

16.5 Nothing in the Contract shall constitute the creation, establishment or relationship of partnership, joint venture or employer and employee between the parties. Neither party shall have the authority, and shall not hold itself out, or permit any person to hold itself out, as being authorized to bind the other party in any way, and shall not do any act which might reasonably create the impression that it is so authorized.

16.6 The Contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

17. NOTICES

17.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand, or by pre-paid first class mail with return receipt requested, or sent by email to the address given by that party for such purposes.

17.2 Any notices delivered by hand will be deemed to have been received when delivered, or, if outside Business Hours, at 9:00am on the next Business Day. A notice sent by mail as set forth in clause 17.1 will be deemed to have been received upon delivery, as recorded by the U.S. Postal Service. A notice sent by email will be deemed to be delivered at the time of transmission (provided that no delivery failure notification is received by the sender) or, if outside Business Hours, at 9:00am on the next Business Day following transmission.

17.3 This clause does not apply to the service of any proceedings or other documents in any legal action which require service of process under Applicable Law.

18. GOVERNING LAW AND JURISDICTION

18.1 The Contract and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and constructed in accordance with the laws of the state of New York.

Each party irrevocably agrees that the courts located in the city, state and county of New York shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract, its subject matter or formation (including non-contractual disputes or claims, and the parties hereby subject themselves to the personal jurisdiction of such courts, and waive any objections they may have to such jurisdiction or the laying of such venue.

Schedule 1

MirrorWeb Service Level Agreement

This MirrorWeb Service Level Agreement (“SLA”) between MirrorWeb, Ltd. (“MirrorWeb”, “us” or “we”) and users of the MirrorWeb Services (“you”) governs the use of the MirrorWeb software as a service platform (the “MirrorWeb Platform”) under the provisions of the Subscription Agreement.

All capitalized terms used but not defined herein shall have the meaning given to them in the Terms.

Unless otherwise provided herein, this SLA is subject to the provisions of the Terms.

MirrorWeb Service Commitment

MirrorWeb will use commercially reasonable efforts to make the MirrorWeb Platform available with a Monthly Uptime Percentage of at least 99.5% during any monthly billing cycle, excluding scheduled Maintenance (the “Service Commitment”). Subject to the SLA Exclusions, if we do not meet the Service Commitment, you will be eligible to receive a Service Credit as described below.

Definitions

“Maintenance” means Unavailability of the MirrorWeb Platform which is pre-scheduled by us, and which was announced by us prior to the MirrorWeb Platform becoming unavailable.

“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the MirrorWeb Platform was Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion, and any scheduled or emergency Maintenance.

“Service Credit” means a credit denominated in USD, calculated as set forth below, that we may credit back to an eligible account.

“Unavailable” and “Unavailability” mean, for application services and databases, when your service or database is not running or not reachable due to MirrorWeb’s fault. This excludes (a) services that are unreachable or not running because the services provisioned resources (RAM, CPU, disk, as applicable) are insufficient; (b) members of a database cluster where the cluster as a whole is running and reachable; and (c) any act or omission of Customer or its service providers, including its hosting provider.

Service Commitments and Service Credits

Service credits are calculated as a percentage of the total charges due on your MirrorWeb invoice for the monthly billing cycle in which the Unavailability occurred, applied proportionally to the Services that were Unavailable. Subject to the foregoing and the remainder of this Schedule, if the MirrorWeb Platform is Unavailable to you and such Unavailability qualifies as a breach of our Service Commitment, then MirrorWeb shall apply a credit to your account of five percent (5%) of applicable monthly fees (“Service Credits”).

We will apply any Service Credits only against future payments for the Services otherwise due from you. Service Credits will not entitle you to any refund or other payment from MirrorWeb. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one USD ($1). Service Credits may not be transferred or applied to any other account.

Sole Remedy

Unless otherwise provided in the Terms, your sole and exclusive remedy for any unavailability, non-performance, or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.

Credit Request and Payment Procedures

To receive a Service Credit, you must submit a claim by emailing support@MirrorWeb.com. To be eligible, the credit request must be received by us by the end of the second billing cycle after which the incident occurred and must include:

the words “SLA Credit Request” in the subject line;
the dates and times of each Unavailability incident that you are claiming;
the account handle(s); and
logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).

If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will issue the Service Credit to you within one billing cycle following the month in which your request is confirmed by us. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.

SLA Exclusions

The Service Commitment does not apply to any Unavailability (the “SLA Exclusions”):

1. Caused by factors outside of our reasonable control, including any force majeure event, Internet access, or problems beyond the demarcation point of the MirrorWeb network;

2. That results from any actions or inactions of you or any third party;

3. That results from the equipment, software or other technology of you or any third party (other than third party equipment within our direct control);

4. That results from failures of MirrorWeb Platform not attributable to Unavailability; or

If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our discretion.