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PrimeDeveloper

Master Subscription Agreement for APERIO PrimeDeveloper

APERIO TERMS OF USE:

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE SET-UP PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE APERIO PRODUCT (THE “PRODUCT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE PRODUCT.

Welcome

As part of the offer, APERIO will provide you with use of the product, including interface and data encryption, transmission of data, access and storage. Your registration for, or use of, the product shall be deemed to be your agreement to abide by this agreement including any materials available on the APERIO website incorporated by reference herein, including but not limited to privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Privacy & Security; Disclosure

APERIO privacy and security policies may be viewed at http://www.aperioltd.com. APERIO reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from APERIO from time to time. They may opt out of receiving such communications at that time or at any subsequent time. Occasionally APERIO may need to notify all users of the product (whether or not they have opted out as described above) of important announcements regarding the operation of the product or updates. If you become a paying customer of the product, you agree that APERIO may disclose the fact that you are a customer in its corporate literature.

2. User Agreement Grant & Restrictions

APERIO hereby grants you a non-exclusive, non-transferable, worldwide right to use the product, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by APERIO.

You may not access the product if you are a direct competitor of APERIO, except with the prior written consent of APERIO. In addition, you may not access the product for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the product or the content in any way; (ii) modify or make derivative works based upon the product or the content; (iii) create Internet "links" to the product or APERIO website or "frame" or "mirror" any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the product in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the product, or (c) copy any ideas, features, functions or graphics of the product. User agreements cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the product.

You may use the product only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the product or the data contained therein; or (v) attempt to gain unauthorized access to the product or its related systems or networks.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify APERIO immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to APERIO immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another APERIO user or provide false identity information to gain access to or use the product.

4. Account Information and Data

APERIO does not own any data, information or material that you submit to the product in the course of using the product ("Customer Data"). You, not APERIO, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and APERIO shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

5. Intellectual Property Ownership

APERIO alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the APERIO technology, the content, any service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the product. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the product, technology or the Intellectual Property Rights owned by APERIO. The APERIO logo, all APERIO product logos and the product names associated with them are trademarks of APERIO and no right or license is granted to use them.

6. Third Party Interactions

During use of the product, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of any other users whose names or identities are shown on the product or the APERIO website. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. APERIO shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. APERIO does not endorse any sites on the Internet that are linked through the product or the APERIO website. APERIO provides these links to you only as a matter of convenience, and in no event shall APERIO be responsible for any content, products, or other materials on or available from such sites. APERIO provides the product to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

7. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Fees due will be calculated on a pre-agreed monthly subscription basis for each and every registered user in your user group. Payments will be made monthly by direct bank transfer and all payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for all User agreements ordered by your company employees, partners or user group. You must provide APERIO with valid approved purchase order information as a condition to signing up for the product. An authorized User Group Administrator may add user agreements by executing an additional online order. Added user agreements will be subject to the following: (i) added user agreements will be coterminous with the preexisting user agreements in your user group; (ii) the monthly subscription fees for the added users will be the then current, generally applicable user group fee; and (iii) users added in the middle of a billing month will be charged for that first month on a pro-rata basis to your next user group invoice. APERIO reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.

8. Billing and Renewal

APERIO charges and collects in arrears for use of the product. APERIO will automatically renew and charge you every month for monthly use by all users in your user group, or as previously agreed upon. The fee due each month will be equal to the number of total users in your user group times the pre-agreed monthly subscription fee, unless APERIO has given you at least 30 days prior written notice of a fee increase, which shall be effective at the next monthly charge and thereafter. Fees for other services will be charged on an as-quoted basis. APERIO fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

You agree to provide APERIO with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and User Group Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, APERIO reserves the right to terminate your access to the product in addition to any other legal remedies.

Unless APERIO in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United Kingdom will be billed in Sterling and subject to U.K. payment terms and pricing schemes ("U.K. Customers"); (ii) entities with headquarters and a majority of users resident in the United States will be billed in U.S. Dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); and (iii) all other entities will be billed in Euros or local currency and be subject to either U.K. or non-U.K. payment terms and pricing schemes at the discretion of APERIO ("Non-U.K./U.S. Customers").

If you believe your monthly bill is incorrect, you must contact us in writing within 60 days of the payment date of the monthly subscription fee in question to be eligible to receive an adjustment or credit.

9. Non-Payment and Suspension

In addition to any other rights granted to APERIO herein, APERIO reserves the right to suspend or terminate this Agreement and your access to the product if your account falls into arrears. Accounts in arrears are subject to interest of LIBOR plus 1.0% per month on any outstanding balance, plus all expenses of collection. If you or APERIO initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that APERIO may invoice you for such unpaid fees.

10. Termination for Cause

Any breach of your payment obligations or unauthorized use of the APERIO Technology or product will be deemed a material breach of this Agreement. APERIO, in its sole discretion, may terminate your passwords, account or use of the product if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that APERIO has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. APERIO represents and warrants that it will provide the product in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the product will perform substantially in accordance with the APERIO help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the product and that your billing information is correct.

12. Mutual Indemnification

You shall indemnify and hold APERIO, its subsidiaries, affiliates, officers, directors, employees, lawyers and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including lawyers' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that APERIO (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release APERIO of all liability and such settlement does not affect APERIO business or products; (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

APERIO shall indemnify and hold you and your parent organisations, subsidiaries, affiliates, officers, directors, employees, lawyers and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including lawyers' fees and costs) arising out of or in connection with: (i) a claim alleging that the product directly infringes a copyright, a U.K. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by APERIO of its representations or warranties; or (iii) a claim arising from breach of this Agreement by APERIO; provided that you (a) promptly give written notice of the claim to APERIO; (b) give APERIO sole control of the defence and settlement of the claim (provided that APERIO may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to APERIO all available information and assistance; and (d) have not compromised or settled such claim. APERIO shall have no indemnification obligation, and you shall indemnify APERIO pursuant to this Agreement, for claims arising from any infringement arising from the combination of the product with any of your products, service, hardware or business process(es).

13. Disclaimer of Warranties

APERIO does not represent or warrant that (a) the use of the product will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the product will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the product or the server(s) that make the service available are free of viruses or other harmful components. the product and all content is provided to you strictly on an "as is" basis. All 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 to the maximum extent permitted by applicable law by APERIO.

14. Internet Delays

APERIO product downloads may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. APERIO is not responsible for any delays, delivery failures, or other damage resulting from such problems.

15. Limitation of Liability

In no event shall either party's aggregate liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. in no event shall either party be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party's licensors have been previously advised of the possibility of such damages.

16. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

17. Local Laws and Export Control

The APERIO website provides services and uses software and technology that may be subject to United Kingdoms export controls and the export control regulations of the United States, the European Union and other jurisdictions. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United Kingdom, United States, and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.K., U.S. and/or European Union List of Specially Designated Nationals. The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the product, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.K., U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

APERIO makes no representation that the product is appropriate or available for use in other locations. If you use the product from outside the U.K, U.S. and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to U.K., U.S. or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the product, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the U.K. or U.S. governments or appropriate European body for such purposes.

18. Notice

APERIO may give notice by means of a general notice on the product, electronic mail to your e-mail address on record in APERIO account management information, or by written communication sent by first class mail or pre-paid post to your address on record in APERIO account management information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to APERIO (such notice shall be deemed given when received by APERIO) at any time by e-mail or written communication sent by first class or pre-paid mail, addressed to the attention of the Managing Director.

19. Modification to Terms

APERIO reserves the right to modify the terms and conditions of this Agreement or its policies relating to the product at any time, effective upon posting of an updated version of this Agreement on the product. You are responsible for regularly reviewing this Agreement. Continued use of the product after any such changes shall constitute your consent to such changes.

20. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of APERIO but may be assigned without your consent by APERIO to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of APERIO directly or indirectly owning or controlling 50% or more of you shall entitle APERIO to terminate this Agreement for cause immediately upon written notice.

21. General

With respect to U.K. Customers, this Agreement shall be governed by English law and controlling United Kingdom law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the product shall be subject to the exclusive jurisdiction of the courts located in London, U.K. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and APERIO as a result of this agreement or use of the product. The failure of APERIO to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by APERIO in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and APERIO and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

22. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the APERIO website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by APERIO from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the product; "Customer Data" means any data, information or material provided or submitted by you to the product in the course of using it; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the product; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "User Group Administrator(s)" means those Users designated by you to authorise the purchase of user agreements online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the product; "User Term(s)" means the period(s) during which a specified number of Users are authorised to use the product pursuant to the Order Form(s); "Order Form(s)" means the form evidencing the initial application for the product and any subsequent order forms submitted online or in written form, specifying, among other things, the number of users and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Online Order Center" means an APERIO online application that allows the User Group Administrator designated by you to, among other things, add additional Users to the group; "APERIO" means APERIO SYSTEMS LIMITED, a U.K. company, having its principal place of business at 33 St James’s Square, London, SW1Y 4JS. " APERIO Technology" means all APERIO proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by APERIO in providing the product; "Product" means the specific editions of the APERIO product(s) identified during the ordering process, developed, operated, and maintained by APERIO, accessible via http://www.aperioltd.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by APERIO, to which you are being granted access under this Agreement, including the APERIO Technology and the Content; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the product and have been supplied user identifications and passwords by you (or by APERIO at your request).

Questions or Additional Information:

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@aperioltd.com.