Terms of Service


ARMATURE Terms of Service

 



1. Welcome

As part of the ARMATURE Service (the “Service”), ARMATURE will provide the Subscriber access to and use of the Service, including a browser interface, data transmission, data access, and data storage. Subscriber’s registration for, or use of, the Service shall be deemed an agreement by the Subscriber to abide by these Terms of Service (the “Agreement”), including any materials and terms available on the ARMATURE website and incorporated by reference herein, including but not limited to ARMATURE’s privacy and security policies set forth at https://armaturecorp.com/privacy.

2. Definitions


 

Application means one or more of the ARMATURE software applications that are provided with the Service, or such other software application(s) as notified by ARMATURE from time to time.

Email means any email or other communications generated or sent through the Service by a User.

Fees means the charges by ARMATURE for subscription to or use of the Service.

ARMATURE means ARMATURE Solutions Corporation, a Virginia corporation having a primary place of business located at 45240 Business Court, Suite 400, Sterling, VA, 20166.

Order Form means the ARMATURE order form or forms and any ancillary ARMATURE terms completed and processed by and with Subscriber to sign up for the Service.

Party means either ARMATURE or Subscriber.

Parties means both ARMATURE and Subscriber.

Service or Subscription Service mean the hosting and/or provisioning of one or more ARMATURE software Applications, identified during a Subscriber ordering process, which have been developed, licensed, operated, and/or maintained by ARMATURE, and are accessible via a designated ARMATURE web site or IP address, including any ancillary online or offline products and services provided to Subscriber by ARMATURE associated with any of the provisioned Applications, to which Subscriber is granted access and/or use under this Agreement.

Subscriber means the individual or entity that has subscribed to the Service under the terms and conditions of this Agreement.

Subscriber Data means data submitted, stored, sent, or received via the Service by Subscriber or a User.

Technology means the ARMATURE technology and underlying software, including any and all proprietary and intellectual property rights therein.

Term means the Initial Term or any Renewal Term, as defined in Section 7 below.

USD means United States dollars.

User means Subscriber’s employees, representatives, consultants, contractors, customers, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by or for ARMATURE at Subscriber’s request).

3. Terms of Service for ARMATURE


 

3.1. Terms of Service.

Subscriber acknowledges and agrees to the terms of service herein. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Subscriber will be subject to this Agreement.

3.2. Subscriber Must Have Internet Access.

In order to use the Service, Subscriber must have or must obtain access to the internet, either directly or through devices that access internet-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the internet.

3.3. Accuracy Of Subscriber Information.

Subscriber agrees to provide accurate, current, and complete information (“Registration Data”) about Subscriber as required by an Order Form or equivalent document. Subscriber further agrees to use commercially reasonable efforts to maintain and promptly update its Registration Data to keep it accurate, current, and complete. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current, or incomplete in a material way, or ARMATURE has reasonable grounds to believe that such information is untrue, inaccurate, not current, or incomplete in a material way, ARMATURE has the right to suspend or terminate Subscriber’s access to and/or use of the Service.

3.4. User Email And Notices.

Subscriber agrees to provide ARMATURE with Subscriber’s e-mail address, to promptly provide ARMATURE with any changes to Subscriber’s e-mail address, and to accept emails (or other electronic communications) from ARMATURE at the e-mail address Subscriber specifies. Except as otherwise provided in this Agreement, the Subscriber further agrees that ARMATURE may provide any and all notices, statements, and other communications to the Subscriber through e-mail.

3.5. Passwords, Access, And Notification.

The maximum number of Users that Subscriber may designate under Subscriber’s account is the number of seats  purchased by Subscriber, as indicated on the Order Form. Subscriber may provide and assign unique passwords and User names to each authorized User for each seat or login name purchased. Subscriber acknowledges and agrees that Subscriber is prohibited from sharing passwords and/or User names with unauthorized users. Subscriber will be responsible for the confidentiality and use of Subscriber’s (including its employees’) passwords and User names.

3.6. Third-Party Software.

Subscriber agrees to use software produced by third parties, including, but not limited to, web browser software that supports data security protocols compatible with the protocols used by the Service. Specifically, unless notified otherwise by ARMATURE, Subscriber agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by ARMATURE and to follow logon procedures for services that support such protocols. Subscriber acknowledges that ARMATURE is not responsible for notifying Subscriber of any upgrades, fixes, or enhancements to any such software or for any compromise of data transmitted or received by such browsers or through computer networks not owned or operated by ARMATURE or telecommunications facilities, including, but not limited to, the Internet.

3.7. Transmission Of Data.

ARMATURE employs security measures designed for the protection of information and data. However, Subscriber understands that the processing and transmission of Subscriber’s electronic communications is fundamentally necessary to Subscriber’s use of the Service. Subscriber acknowledges and agrees that ARMATURE does not own any Subscriber Data and further agrees that ARMATURE is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by ARMATURE.

3.8. Proprietary Rights.

a. Subscriber acknowledges and agrees that the Service and any software used by ARMATURE in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws.

b. Each party retains all right, title and interest in its data, information, and intellectual property rights; and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, ARMATURE owns all right, title, and interest in the Service, Applications, and the ARMATURE Technology and underlying software and proprietary and intellectual property rights therein. The use by Subscriber of any of these rights is authorized only for the purposes set forth herein; and such authorization will cease upon the expiration or termination of this Agreement for any reason.

3.9. Confidentiality.

Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure (“Confidential Information”). Confidential Information includes the Applications, Application software, Application documentation, and any new product or information related to or part of the Service. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care.

Confidential Information will not include:

(i) any materials or information that a receiving party can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public;

(ii) is known by the receiving party at the time of disclosure as evidenced by its records;

(iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure;

(iv) is independently developed by the receiving party without any breach of this Agreement;

(v) is the subject of a written permission to disclose that is provided by the disclosing party;

(vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring the Confidential Information so disclosed to be used only for which the order was issued; or

(vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate “need to know” the information for their performance of this Agreement, who have been advised of the confidential nature thereof, and who have agreed in writing as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement.

ARMATURE limits the amount of document storage to 50GB unless otherwise noted in the relevant Order Form. Accounts that exceed that amount will be billed an over limit fee of $1.00 per gigabyte per day, or if different, the then-current fee, calculated daily.

3.11. Compliance With Applicable Laws.

Subscriber’s use of the Service must comply with all applicable Laws. This includes laws applicable to Subscriber and also laws applicable to ARMATURE and the recipients of any Email. Examples of applicable laws include laws relating to spam or unsolicited commercial email (“UCE”), privacy, security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, and other applicable laws. It is Subscriber’s responsibility to know and understand the laws applicable to its use of the Service, including the laws relating to Emails that Subscriber and/or its Users may generate and send through the Service.

3.12. Guidelines for the Sending of Email.

The guidelines below are examples of practices that may violate this Agreement when generating or sending Emails through the Service:

  • Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails by affirmatively opting-in to receive those Emails).
  • Using purchased or rented Email lists.
  • Using third party email addresses, domain names, or mail servers without proper permission.
  • Sending Emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com).
  • Sending Emails that result in an unacceptable number of spam or UCE complaints (even if the Emails themselves are not actually spam or UCE).
  • Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from Subscriber’s mailing list.
  • Failing to comply with any request from a recipient to be removed from Subscriber’s mailing list within 10 days of receipt of the request.
  • Failing to include in each Email a link to the then-current Privacy Policy applicable to that Email.
  • Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email.
  • Failing to include in each Email a valid physical mailing address or a link to that information.
  • Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.

4. RESTRICTIONS AND RESPONSIBILITIES.


a. This is a contract for services. The Application software will be installed, accessed, and maintained only by ARMATURE, and no license is granted thereto. Subscriber agrees that it will not, directly, or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any Application, software, documentation, or data related to the Service (“Software”). Subscriber agrees that it will not modify, translate, or create derivative works based on the Service or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software. Subscriber agrees that it will not use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. Subscriber agrees that it will not remove any proprietary notices or labels. Subscriber represents, covenants, and warrants that it will use the Service only in compliance with ARMATURE’s standard policies then in effect, and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws, such as GDPR), intellectual property, consumer and child protection, obscenity or defamation). Subscriber hereby agrees to indemnify and hold harmless ARMATURE against any damages, losses, liabilities, settlements, and expenses (including, without limitation, costs, and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of the Service. Although ARMATURE has no obligation to monitor the content provided by Subscriber or Subscriber’s use of the Service, ARMATURE may do so and may remove any such content or prohibit any use of the Service it believes may be (or are alleged to be) in violation of the foregoing.

b. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating systems, networking software, web servers, web services, long distance service, and/or local telephone service (collectively, “Equipment”). Subscriber shall be responsible for ensuring that such Equipment and related services are compatible with the Service and complies with all configurations and specifications set forth in ARMATURE’s documentation made available to Subscriber. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, ancillary services, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account, the Service, or the Equipment with or without Subscriber’s knowledge or consent.

c. Subscriber acknowledges and agrees that Subscriber is the controller of personal data and Subscriber remains responsible for the obligations of a controller, including but not limited to, the responsibility for complying with any laws and regulations providing for notice, choice, and/or consent prior to transferring the personal data to ARMATURE for processing. The Subscriber acts as a data exporter, and decides what data to upload and process, or to allow its users/customers to upload and process, on the Service. The data subjects may include the Subscriber’s representatives and end users, such as employees, job applicants, contractors, collaborators, partners, and customers of the Subscriber. Data subjects also may include individuals attempting to communicate or transfer Personal Data to users of the Service. Personal Data may include, among other information, personal contact information such as name, home address, home telephone or mobile number, fax number, email address, and passwords; information concerning family, lifestyle and social circumstances including age, date of birth, marital status, number of children and name(s) of spouse and/or children; employment details including employer name, job title and function, employment history, salary and other benefits, job performance and other capabilities, education/qualification, identification numbers, social security details and business contact details; financial details; and goods and services provided. The Subscriber shall disclose personal data to ARMATURE, the data importer, only as necessary for ARMATURE to provide the Service in accordance with these Terms of Service.

d. ARMATURE shall maintain appropriate administrative, physical, and technical safeguards designed to protect personal data provided through the Service as provided in the ARMATURE Privacy Policy set forth at https://armaturecorp.com/privacy, to the extent applicable to ARMATURE’s processing of personal data.

e. Subscriber hereby instructs and authorizes ARMATURE to use subprocessors to assist ARMATURE with respect to the performance of ARMATURE’s obligations in provision of the Service. ARMATURE and its subprocessors provide the Service globally, but any processing of personal data shall only take place in facilities that are located within jurisdictions in which ARMATURE and its subprocessors support the provision of the Service.

f. Until the Termination of Agreement (under Section 7), ARMATURE shall provide Subscriber access to the personal data so that Subscriber may correct, delete, or block such personal data. If the Subscriber is unable to correct, delete, or block such personal data, then to the extent permitted by law and pursuant to the Subscribers detailed written instructions, ARMATURE will make such corrections, amendments, or deletions on the Subscriber’s behalf pursuant to a mutually agreeable statement of work in which Subscriber agrees to pay ARMATURE’s reasonable fees associated with the performance of any such correction, deletion or blocking of personal data. If Subscriber or a User uses the Service to delete any Subscriber Data and the Subscriber Data cannot be recovered by Subscriber or an End User (such as from the “inactive” list feature), this use will constitute an instruction to Armature to delete the relevant Subscriber Data from ARMATURE’s systems in accordance with applicable law. ARMATURE will comply with this instruction as soon as reasonably practicable (but in not less than 30 days to allow for recovery from backups in the instance of an accidental deletion by a Subscriber or User) and within a maximum period of 180 days unless applicable law requires a different response. If a Subscriber cancels the Service, ARMATURE will delete the Subscriber Data from ARMATURE’s systems within a maximum period of 180 days, unless applicable law requires a different response.

g. In the event of a Security Incident, ARMATURE will notify Subscriber in accordance with ARMATURE’s obligations under the applicable law or regulatory requirement that applies to the Security Incident. “Security Incident” shall mean the misappropriation of personal data located on ARMATURE systems or processed by the Service, which results in a compromise of the security, confidentiality, or integrity of such personal data. Security Incidents will not include unsuccessful attempts or activities that do not compromise the security of Subscriber data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems. Notification(s) of any Security Incident(s) will be delivered to the Subscriber Email Address or, at ARMATURE’s discretion, by direct communication (for example, by phone call or an in-person meeting). Subscriber is solely responsible for ensuring that their Email Address is current and valid. ARMATURE will not assess the contents of Subscriber Data in order to identify information subject to any specific legal requirements. Subscriber is solely responsible for complying with incident notification laws applicable to Subscriber and fulfilling any third party notification obligations related to any Security Incident(s). ARMATURE’s notification of or response to a Security Incident under this Section 4(g) will not be construed as an acknowledgement by ARMATURE of any fault or liability with respect to the Security Incident.

h. If ARMATURE receives a request from a data subject in connection with the processing of such person’s personal data on Subscriber’s behalf, then ARMATURE shall notify Subscriber, to the extent legally permitted; provided, however, that Subscriber shall have the sole obligation of responding directly to such data subject. ARMATURE shall reasonably cooperate with the Subscriber in the event of an investigation by a data protection regulator or similar authority, if and to the extent that such investigation relates to ARMATURE’s processing of personal data.

i. ARMATURE shall keep a list of subprocessors and make it available for Subscriber’s review upon request on an annual basis or in the event that a new subprocessor is added. Subscriber consents to ARMATURE’s use of subprocessors in performance of the Service.

5. FEES, BILLING AND RENEWAL.


a. Unless otherwise indicated by ARMATURE for the relevant Service, Fees for the subscription or use of a Service are payable and remitted to ARMATURE, as further described in this paragraph immediately below. ARMATURE charges and collects non-refundable Fees in advance for use of the Service and no Fees are refundable for any reason during the Initial Term or any Renewal Term. During any Term, ARMATURE will automatically renew and bill Subscriber’s credit card or issue an invoice (a) every month for monthly service, (b) every quarter for quarterly service, (c) each year on the subsequent anniversary for annual service, or (d) as otherwise mutually agreed upon.

b. Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ARMATURE, the Subscriber must pay to ARMATURE the amount of such taxes or duties in addition to the Service Fees under this Agreement. Notwithstanding the foregoing, the Subscriber may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, Subscriber shall have the right to provide to ARMATURE with any such exemption information and ARMATURE will use reasonable efforts to provide such invoicing documents as may enable the Subscriber to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

6. NON-PAYMENT AND SUSPENSION.


All payments for Fees shall be due according to the terms in Section 5 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to ARMATURE herein, ARMATURE reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent for 30 or more days. Delinquent invoices are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for the Service during any period of suspension. If Subscriber or ARMATURE initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Subscriber agrees that ARMATURE may charge such unpaid Fees and charges to Subscriber’s credit card or otherwise bill Subscriber for such unpaid Fees and charges. Subscriber agrees and acknowledges that ARMATURE has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber’s account becomes delinquent for 30 or more days.

7. TERM, REDUCTION IN USERS and TERMINATION.


a. This Agreement commences on the Start Date provided in the Order Form. Unless earlier terminated under Sections 6 or 7, this Agreement will automatically renew at the end of the initial Term specified in the Order form (the “Initial Term”) and any Renewal Term for successive renewal terms equal in duration to the Initial Term, or one year, if the Initial Term is equal to or greater than one year (each a “Renewal Term”) at ARMATURE’s then current rates, unless a different rate is specified in the Order Form covering a term of greater than one year. Either party may terminate this Agreement or reduce the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing at least sixty (60) business days prior to the date of the invoice for the following Term. In the event this Agreement is terminated (other than by reason of Subscriber’s breach), ARMATURE will make available to Subscriber a file of the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. Subscriber agrees and acknowledges that ARMATURE has no obligation to retain the Subscriber Data, and may delete such Subscriber Data more than 30 days after termination.

b. Any breach or delinquency of Subscriber’s payment obligations or unauthorized use of the ARMATURE Technology or the Service will be deemed a material breach of this Agreement. Armature, in its sole discretion, may immediately terminate Subscriber’s password, account, or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. In addition, ARMATURE may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that ARMATURE has no obligation to retain the Subscriber Data, and may delete such Subscriber Data if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and if such breach has not been cured within 30 days of delinquency or notice of such breach; provided, however, notwithstanding anything to the contrary, ARMATURE may, in its sole discretion, immediately terminate this Agreement and take any actions as described herein related to or in connection with Subscriber’s unauthorized use of ARMATURE’s Technology or Service.

c. The following sections shall survive expiration or termination of this Agreement: Section 2 (Definitions), Section 3 (Terms of Service for ARMATURE), Section 4 (Restrictions and Responsibilities), Section 5 (Fees, Billing and Renewal) (surviving until all Fees and charges are paid and Subscriber responsibilities fulfilled), Section 6 (Non-Payment and Suspension) (surviving until all Fees and charges are paid), Section 7 (Term, Reduction in Users and Termination), Section 8 (Assignment, Successors and Assigns), Section 11.b. (Indemnification), Section 12 (Disclaimer of Warranties), Section 13 (Exclusion of Damages and Limitation of Liability), Section 14 (“General Provisions”).

8. ASSIGNMENT, SUCCESSORS AND ASSIGNS.


Subscriber shall not transfer or assign this Agreement (including by operation of law) or any rights or obligations hereunder without the prior written consent of ARMATURE, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.

9. PUBLICITY RIGHTS.


Subscriber grants ARMATURE the right to include the Subscriber as a customer in ARMATUREs promotional material. Subscriber can opt to have their name excluded from such use by ARMATURE as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to legal@armature.com; the subject line in such email should be entitled “Non-use of Subscriber Name.”

10. REPRESENTATIONS & WARRANTIES.


a. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

b. ARMATURE represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof under normal use and circumstances, and substantially in accordance with ARMATURE’s documentation.

c. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.

11. INDEMNIFICATION.


a. By ARMATURE. ARMATURE shall defend, indemnify, and hold Subscriber harmless from all settlements agreed to by ARMATURE and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party’s registered U.S. patent or copyright. Subscriber will be entitled to indemnification only if:

(i) Subscriber notifies ARMATURE in writing within ten (10) days of the date Subscriber first becomes aware of a claim;

(ii) ARMATURE has sole control of the settlement, compromise, negotiation, and defense of any such action; and

(iii) Subscriber gives ARMATURE all reasonably available information and assistance, at ARMATURE’s expense. ARMATURE may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in ARMATURE’s sole discretion, terminate Subscriber’s right to the allegedly infringing Service and refund to Subscriber a pro rata portion of the amount which Subscriber has paid for such Service.

The foregoing indemnity will not apply to any infringement claim arising from:

(a) modification of the Service by parties other than ARMATURE;

(b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service; or

(c) use of the Service other than in accordance with ARMATURE’s instructions and documentation.

THE FOREGOING STATES ARMATURE’s SOLE OBLIGATION AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.

b. By Subscriber. Subscriber shall defend, indemnify, and hold ARMATURE harmless from all third party claims and settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber’s infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. ARMATURE agrees that:

(i) it shall provide Subscriber written notice promptly after it first becomes aware of a claim;

(ii) Subscriber shall have sole control of the settlement, compromise, negotiation, and defense of any such action; and

(iii) it shall give Subscriber all reasonably available information and assistance, at Subscriber’s expense.

ARMATURE shall have the right to participate in the defense or settlement with counsel of its own choosing at ARMATURE’s expense, provided however, that the same shall be at Subscriber’s expense if Subscriber fails to put on an adequate defense of ARMATURE.

12. DISCLAIMER OF WARRANTIES.


ARMATURE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 10, THE SERVICE AND ALL CONTENT THEREIN IS PROVIDED TO SUBSCRIBER STRICTLY ON AN “AS IS” BASIS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY ARMATURE AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.


IN NO EVENT WILL ARMATURE’S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO ARMATURE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. ARMATURE WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF ARMATURE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.

14. GENERAL PROVISIONS.


a. Governing Law. This Agreement will be governed in all respects by the laws of the Commonwealth of Virginia, without regard to the conflict of law provisions thereof. Any dispute relating to or arising out of the provisions of this Agreement will be litigated in the state courts having jurisdiction in Fairfax County, Virginia, or in the United States District Court for the Eastern District of Virginia, where federal jurisdiction exists. Should a Party seek an injunction hereunder, the other Party hereby waives any requirements that first Party post a bond or any other security. A Party will be entitled to receive its reasonable costs and attorney’s fees should that Party prevail in an action arising out of or relating to this Agreement.

b. Entire Agreement. This Agreement, including all Order Forms provided by and entered with ARMATURE in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party.

c. Force Majeure. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, epidemic, pandemic, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.

d. Severability. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve, as nearly as possible, the intent of the parties, or if amendment is not possible, the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect.

e. Construction. The captions and headings in this Agreement are for convenience only and shall not affect the construction and interpretation of any provision of this Agreement.

f. Counterparts. Where this Agreement is executed in hard copy and not entered into by on-line acceptance, this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

 
 

 

 
 

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