Zone Partner Master Subscription Agreement

Siliconcoach Terms of Use:

By signing or submitting the Zone Order Form as part of the ordering process, you agree to the following terms and conditions (the "Agreement") governing your use of Siliconcoach's Zone technology. 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, do not sign or submit the Zone Order Form.

Welcome

As a Zone Partner, Siliconcoach will provide you with use of the Zone technology. Your registration for, or use of, the Zone shall be deemed to be your agreement to abide by this Agreement including any materials available on the Siliconcoach website incorporated by reference herein, including but not limited to Siliconcoach's privacy, security policies and terms of use. For reference, a Definitions section is included at the end of this Agreement.

The Zone technology can be accessed in several configurations and details relating to your specific Zone are contained in the Order Form.

1. Privacy

Siliconcoach's privacy policies may be viewed at http://www.siliconcoach.com/terms and should be viewed in association with section 4 and 5 of this agreement. Siliconcoach reserves the right to modify its privacy policies in its reasonable discretion from time to time. Note that because The Zone is a hosted, online application, Siliconcoach occasionally may need to notify all users of your Zone of important announcements regarding the operation of your Zone. You agree that Siliconcoach can disclose the fact that you are a customer and the edition of The Zone that you are using.

2. License Grant & Restrictions

Siliconcoach hereby grants you a non-exclusive, non-transferable, worldwide right to use the Zone technology, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Siliconcoach and its licensors.

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

Other than detailed in your Zone Order form you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Zone or the Content in any way; (ii) modify or make derivative works based upon The Zone or the Content; (iii) create Internet "links" to The Zone or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access The Zone in order to (a) build a competitive product or Zone, (b) build a product using similar ideas, features, functions or graphics of The Zone, or (c) copy any ideas, features, functions or graphics of The Zone. Users that you allow access to your Zone cannot share their access with others and you cannot grant access to more than the number of Users specified in the Zone Order Form.

You may use the Zone only for the agreed 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, libellous, or otherwise unlawful or tortuous 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 Zone or the data contained therein; or (v) attempt to gain unauthorized access to The Zone 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 Zone, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Siliconcoach immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Siliconcoach 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 Siliconcoach user or provide false identity information to gain access to or use The Zone.

4. Account Information and Data

Siliconcoach does not own any data, information or material that you submit to The Zone in the course of using The Zone ("Customer Data"). You, not Siliconcoach, 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 Siliconcoach shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Siliconcoach reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Siliconcoach shall have no obligation to maintain or forward any Customer Data.

5. Intellectual Property Ownership

Siliconcoach alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Siliconcoach Technology, the Content and The Zone and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to The Zone. This Agreement is not a sale and does not convey to you any rights of ownership in or related to The Zone, the Siliconcoach Technology or the Intellectual Property Rights owned by Siliconcoach. The Siliconcoach name, the Siliconcoach logo, and the product names associated with The Zone are trademarks of Siliconcoach or third parties, and no right or license is granted to use them.

6. Third Party Interactions

During use of The Zone, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through The Zone. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Siliconcoach and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Siliconcoach does not endorse any sites on the Internet that are linked through The Zone. Siliconcoach provides these links to you only as a matter of convenience, and in no event shall Siliconcoach or its licensors be responsible for any content, products, or other materials on or available from such sites. Siliconcoach provides The Zone 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. The charges applicable to your Zone are contained in the Order Form. Charges comprise both Set Costs and Variable Costs. All payment obligations are non cancellable and all amounts paid are non refundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Siliconcoach with valid credit card or approved purchase order information as a condition to signing up for The Zone. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Centre. Added licenses will be subject to the following: (i) added licenses will be coterminous with the pre existing License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. Siliconcoach 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. Data Fees

Data storage and data transfer will be charged as set out in the Order Form. A Baseline Data amount will be stated in the Order Form. The baseline data balance will reduce in time in line with data use. In the Statement following the period that the baseline data amount is extinguished you will be invoiced the Baseline Top Up amount as disclosed in the Order Form. Siliconcoach reserves the right to establish or modify its general practices and limits relating to Data Fees.

9. Billing and Renewal

Siliconcoach charges and collects in advance for use of The Zone. Siliconcoach will automatically renew your account and bill your credit card or issue an invoice to you each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then current User Cost in effect during the prior term, unless Siliconcoach has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Siliconcoach's 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, excluding only for New Zealand customers where GST shall be applied and United Kingdom customers where VAT shall be applied.

The Baseline Data amount is reset at the renewal of the subscription.

You agree to provide Siliconcoach 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 License 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, Siliconcoach reserves the right to terminate your access to The Zone in addition to any other legal remedies.

Unless Siliconcoach in its discretion determines otherwise entities will be billed in U.S. dollars.

If you believe your bill is incorrect, you must contact us in writing within 14 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

10. Non-Payment and Suspension

In addition to any other rights granted to Siliconcoach herein, Siliconcoach reserves the right to suspend or terminate this Agreement and your access to The Zone if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.50% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Siliconcoach 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 Siliconcoach may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Siliconcoach reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to The Zone. You agree and acknowledge that Siliconcoach has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

11. Termination upon Expiration/Reduction in Number of Users

This Agreement commences on the Effective Date. The Initial Term will be as disclosed in the Order Form or as you elect during the online subscription process. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is less than one year) at Siliconcoach's then current fees. 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 five (5) business days prior to the date of the invoice for the following term.

12. Termination for Cause

Any breach of your payment obligations or unauthorized use of the Siliconcoach Technology or Zone will be deemed a material breach of this Agreement. Siliconcoach, in its sole discretion, may terminate your password, account or use of The Zone if you breach or otherwise fail to comply with this Agreement. In addition, Siliconcoach may terminate a free account at any time in its sole discretion. You agree and acknowledge that Siliconcoach 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.

13. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Siliconcoach represents and warrants that it will provide The Zone in a manner consistent with general industry standards reasonably applicable to the provision thereof and that The Zone will perform substantially in accordance with the online Siliconcoach 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 Zone and that your billing information is correct.

14. Mutual Indemnification

You shall indemnify and hold Siliconcoach, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' 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 Siliconcoach (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Siliconcoach of all liability and such settlement does not affect Siliconcoach's business or Zone); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Siliconcoach shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that The Zone directly infringes a copyright, a U.S. 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 Siliconcoach of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Siliconcoach; provided that you (a) promptly give written notice of the claim to Siliconcoach; (b) give Siliconcoach sole control of the defence and settlement of the claim (provided that Siliconcoach may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Siliconcoach all available information and assistance; and (d) have not compromised or settled such claim. Siliconcoach shall have no indemnification obligation, and you shall indemnify Siliconcoach pursuant to this Agreement, for claims arising from any infringement arising from the combination of The Zone with any of your products, Zone, hardware or business process(s).

15. Disclaimer of Warranties

Siliconcoach and its licensors make no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of The Zone or any content. Siliconcoach and its licensors do not represent or warrant that (a) the use of The Zone will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) The Zone 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 Zone will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) The Zone or the server(s) that make The Zone available are free of viruses or other harmful components. The Zone 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 Siliconcoach and its licensors.

16. Internet Delays

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

17. 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 and/or its licensors 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 The Zone, including but not limited to the use or inability to use The Zone, or for any content obtained from or through The Zone, 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.

18. 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.

19. Notice

Siliconcoach may give notice by means of a general notice on The Zone, electronic mail to your e-mail address on record in Siliconcoach's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Siliconcoach's account 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 Siliconcoach (such notice shall be deemed given when received by Siliconcoach) at any time by any of the following: letter sent by confirmed facsimile to Siliconcoach at the following fax number: +64 3 479 2051; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Siliconcoach at the following address PO Box 33 Dunedin New Zealand addressed to the attention of: General Manager.

20. Modification to Terms

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

21. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Siliconcoach but may be assigned without your consent by Siliconcoach 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 Siliconcoach directly or indirectly owning or controlling 50% or more of you shall entitle Siliconcoach to terminate this Agreement for cause immediately upon written notice.

22. General

With respect to U.S. Customers, this Agreement shall be governed by California law and controlling United States federal 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 Zone shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. With respect to Non-U.S. Customers this Agreement shall be governed by the laws of New Zealand, 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 Zone shall be subject to the exclusive jurisdiction of the courts of New Zealand. 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 Siliconcoach as a result of this agreement or use of The Zone. The failure of Siliconcoach 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 Siliconcoach in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Siliconcoach and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

23. Definitions

As used in this Agreement and in any Order Forms and now or hereafter associated herewith: "Agreement" means these terms of use, any Order Forms, whether written or submitted online via the Online Order Centre, and any materials available on the Siliconcoach website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Siliconcoach 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 Zone; "Customer Data" means any data, information or material provided, created or submitted by you or Users to The Zone in the course of using The Zone; "Effective Date" means the earlier of either the date this Agreement is accepted by signature on the physical Agreement, selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using The Zone; "Initial Term" means the initial period during which you are obligated to pay for The Zone. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, Zone 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; "License Administrator(s)" means those Users designated by you who are authorized to purchase licenses online using the Online Order Centre or by executing written Order Forms and to accept and or create User accounts and otherwise administer your use of The Zone; "Order Form(s)" means the form evidencing the initial subscription for The Zone and any subsequent order forms submitted online or in written form, specifying, among other things, the number of user licenses and other Zones 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 Centre" means Siliconcoach's online application that allows the License Administrator designated by you to, among other things, add additional Users to The Zone; "Siliconcoach" means collectively Siliconcoach limited, a New Zealand corporation, having its principal place of business at The Clarion Building, Level 1, 286 Princes Street, Dunedin; "Siliconcoach Technology" means all of Siliconcoach's 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 Siliconcoach in providing The Zone; "Zone(s)" means the specific edition of Siliconcoach's online analysis and sharing tool, or other services identified during the ordering process, developed, operated, and maintained by Siliconcoach, accessible via http://www.live.Siliconcoach.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Siliconcoach, to which you are being granted access under this Agreement; "User(s)" means anyone authorized by you to access your Zone and have supplied user identifications and passwords by way of registering as a User to Siliconcoach Live.

Questions or Additional Information:

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

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