Enterprise terms of service

This Uniqode Terms of Service Agreement (this “Agreement”), including all and any Annexures and referenced URLs (“Agreement”), is entered into between Uniqode Phygital Inc., Uniqode with its principal place of business located at 575 5th Avenue, New York, NY 10017 (“Uniqode”) and ____________, with its principal place of business located at ____________, (“Customer”), and effective on the date on which Customer executes this Agreement (“Effective Date”).

Uniqode and Customer sometimes are collectively referred to herein as the “Parties” and individually as a “Party.”

1. Scope

This Agreement governs Uniqode’s provision to Customer of such Uniqode software-as-a-service (“SaaS”) and/or such other services selected and ordered (“Uniqode Services” or “Services”) by Customer on the Uniqode website (“Website”).

The Parties agree that the terms of this Agreement shall extend to and govern all orders placed with Uniqode by Customer in an order form as shown in Appendix A (the “Order Form”) as well as any receipt and use by Customer and/or Permitted Users (as later defined) of the Uniqode Services.

It is understood by Customer that any software functionality, including that enabled by Uniqode’s proprietary software, ‘Uniqode’ (“Software”), made available to Customer pursuant to this Agreement shall be provided as part of Uniqode’s SaaS offering (“Uniqode SaaS”) forming part of the Uniqode Services and that no physical copies of Software shall be provided by Uniqode to Customer.

2. Right to Use

Uniqode hereby grants to Customer, effective as of the date this Agreement is executed (“Service Commencement Date”), a worldwide, non-exclusive, non-transferable, revocable, and limited right and license to receive, access, and use the Uniqode Services, through Customer’s internet connection or proprietary telecommunications line, for Customer’s internal business purposes (“Agreed Purpose”), in return for Customer’s strict compliance with the terms of this Agreement.

While Uniqode shall employ its reasonable efforts to safeguard any Service Data (as later defined) provided by Customer and/or Permitted Users to the Uniqode system (any SaaS or other systems provided to Customer or Permitted Users by Uniqode) (“Uniqode System”) or generated as part of the Services used by Uniqode as part of its provision of the Uniqode, Customer acknowledges that it and/or its Permitted Users shall be solely responsible for:

  • Compliance with applicable laws for any Service Data that customer creates and/or provides to Uniqode, including any personal data or sensitive data that Customer or any of its Permitted Users provide to Uniqode.
  • Making backup copies of any and all such Service Data created and/or provided by Customer to Uniqode.

Customer specifically understands and agrees that the agreed Fees are specifically predicated on this allocation of risk and that consequently Uniqode shall have no liability to Customer, its servants, or agents for Customer’s violation of applicable law related to such Service Data and any loss of or damage to such Service Data.

3. Permitted Use by Others

Uniqode hereby authorizes Customer to permit Customer's affiliates, servants, and agents (“Permitted Users”) to receive, access, and use Uniqode Services for the Agreed Purpose on condition that:

  1. Customer shall procure the compliance of Permitted Users with the terms of this Agreement.
  2. Customer shall remain responsible and liable for any misuse of the Uniqode Services or breach of the terms of this Agreement by Permitted Users in connection with their use of the Uniqode Services or in connection with this Agreement, specifically including any applicable security, integrity, data protection, or privacy laws or regulations and Acceptable Use (as later defined).

The term “affiliates” of Customer in this Agreement shall include any affiliates, agents, subsidiaries, or entities with common branding or other entities that share the same domain of Customer. Customer grants to Uniqode and its group companies permission to share affiliate or Customer account and usage information (including contact information of either Customer or affiliate account holders such as email, name, and location of the respective contacts) with Customer or any its affiliates.

4. Acceptable Use

Receipt, access, and use of and to the Uniqode Services by Customer and/or Permitted Users is granted on condition of their strict compliance with the following restrictions, that under no circumstances shall Customer and/or Permitted Users:

  1. Transmit content that violates the privacy, intellectual property, or other proprietary rights of Uniqode or any other party.
  2. Knowingly or recklessly transmit viruses, trojan horses, worms, malicious code, or other harmful or destructive content.
  3. Breach any terms of this Agreement, or any applicable law.
  4. Attempt to probe, scan, test, re-engineer, or violate the security features of Uniqode Services or any associated system or network, or to obtain unauthorized access to materials or other information stored thereon.
  5. Attempt to sell, resell, transfer, assign, license, sublicense, pledge, lease, rent, distribute, timeshare, or share or otherwise commercially exploit or make the Uniqode Services available to or for the benefit of any third party, other than Permitted Users.
  6. Attempt to interfere with or disrupt the integrity or provision of the Uniqode Services or the data contained therein.
  7. Exploit or present minors in a sexual way, or promote adult sexual services, or represent a private person offering to trade or sell drugs, firearms, or other hazardous materials, including any indication or promotion of hate speech.
  8. Remove any copyright, trademark, or other proprietary notices from any portion of the Uniqode Services.
  9. Use meta tags, hidden text, or metadata with Uniqode’s trademark, logo, URL, or product name without Uniqode’s prior written consent.
  10. Use Uniqode’s user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Uniqode Services to send altered source-identifying information.
  11. Share with any third party other than Permitted Users the login credentials used to access and use the Uniqode Services.
  12. Provide or process data of children under the age of thirteen (13).
  13. Attempt to interfere with the provision or use of the Uniqode Services, whether directly or indirectly, by any other manner not expressly mentioned above (collectively, “Acceptable Use”).

5. Account Access

To enable receipt, access, and use of and to the Uniqode Services, Customer and/or each Permitted User shall register for and maintain an active Uniqode account (“Account”) with Uniqode. It is a condition of receipt, access, and use of and to the Uniqode Services that each Permitted User must be at least 18 years of age and Uniqode shall, in no manner whatsoever, be liable for any violation of the foregoing.

Customer shall be responsible for all activity that emanates from any Customer or Permitted User Account and for any use not in conformance with Acceptable Use or this Agreement.

6. Support

By creating an Account, Customer consents to Uniqode sending Customer and/or Permitted Users email communications necessary to give effect to the terms of this Agreement. Customer and/or Permitted Users may opt-out of receiving such communication at any time by clicking the unsubscribe button located on any such email communications from Uniqode. Customer acknowledges that opting out of such communication may impact the quality and beneficial use of the Uniqode Services.

As part of its provision of the Uniqode Services, Uniqode shall make available to Customer and/or Permitted Users reasonable support and information in connection with same, which support and information may be provided via phone, email, or other reasonable means, in accordance with instructions to be shared by Uniqode with Customer and each Permitted User.

7. Non-Compliance

Upon Customer or any Permitted User becoming aware of any non-compliance with the terms of this Agreement, including without limitation any Acceptable Use, Account maintenance, and/or applicable security, integrity, or privacy requirements, Customer shall notify Uniqode without undue delay, by sending an email summarizing any such non-compliance to legal@uniqode.com, to enable any appropriate remedial action to be undertaken by Uniqode.

8. Modifications to System & Updates

Customer acknowledges that it is obtaining the benefit of a standard service and that, as such, Uniqode may, in its sole discretion:

  1. Reengineer its network or service components.
  2. Change the locations of its hosting centers.
  3. Modify and/or replace technology and/or service architectures, without material degradation of the Uniqode Services.
  4. From time to time, provide enhancements or improvements to the features and/or functionality of the Uniqode Services, which may include patches, bug fixes, updates, upgrades, and other modifications (collectively, “Updates”).

As the Uniqode Services evolve over time, such Updates may operate to modify or delete certain then-existing features and/or functionalities of the Uniqode Services. To this end, Customer hereby agrees that Uniqode has no obligation:

  1. To provide any specific Updates, or at all.
  2. To continue to provide or enable any particular features and/or functionalities of Uniqode Services to Customer and/or Permitted Users.

Customer further agrees that all Updates will, upon installation by Uniqode, be:

  1. Deemed to constitute an integral part of the Uniqode Services.
  2. Subject to the terms of this Agreement.

9. SDK

In circumstances where Customer requires software development to enable it to use the Uniqode Services in conjunction with any Products and the Uniqode mobile application (“Purpose”), Uniqode hereby grants the Customer a worldwide, non-exclusive, non-transferable, royalty-free license to use the software development kit (“SDK”) to realize the Purpose, which SDK shall be made available by Uniqode as a downloadable file.

10. Fees

Customer agrees to pay Uniqode the fees corresponding to the particular Uniqode Services ordered by Customer, as defined in an Order Form (“Fees”), in accordance with the payment terms set out therein.

Such Fees are exclusive of all applicable taxes in any relevant jurisdiction, and Customer shall be responsible for the payment of all such validly levied taxes, specifically excluding all and any taxes accruing on the basis of Uniqode’s income, which shall remain the responsibility of Uniqode. Customer acknowledges that all Fees due hereunder are payable in advance and that any delay or failure on the part of Customer to pay the agreed Fees by the due date for payment shall enable Uniqode, without further notice, to suspend the Uniqode Services or terminate this Agreement in accordance with its terms.

11. Third-Party Interactions

The Uniqode Services may contain links to third-party-provided websites, applications, resources, and advertisements (“Third Party Provision”).

Customer understands and agrees that Third Party Provision is not under the control of Uniqode and that any access to Third Party Provision by Customer and/or Permitted Users shall be entirely at Customer’s risk and subject to any Third Party Provision terms of use associated with the same. Customer further agrees that Third Party Provision is outside of the scope of this Agreement and that Uniqode shall have no responsibility or liability to Customer and/or Permitted Users for:

  1. The availability or accuracy of Third Party Provision.
  2. The content, products, or services available from such Third Party Provision.

12. Intellectual Property Rights

Notwithstanding anything to the contrary set forth in this Agreement, each party shall continue to own title to any Intellectual Property Rights:

  1. It owned as of the Effective Date.
  2. Created and owned independently of this Agreement.
  3. Any modifications, adaptations, and derivations of subsections (i) and (ii) above (“Background IP”).

Nothing in this Agreement shall operate to transfer any Background IP between the parties.

Uniqode and/or its licensors own all worldwide Intellectual Property Rights in the:

  1. Software and user interfaces used for providing the Uniqode Services.
  2. Uniqode SaaS.
  3. Products.
  4. SDK.
  5. All trademarks, service marks, and logos of Uniqode (“Uniqode IP”).

Except for the right to receive, access, and use the Uniqode Services as expressly set forth herein specifically for the Purpose, no right or license is granted hereunder with respect to the Uniqode IP. Further, Customer shall not, and shall procure that its Permitted Users shall not, nor permit any third party to:

  1. Use, copy, adapt, modify, or create derivative works of the Uniqode IP.
  2. Where applicable, reverse-engineer, disassemble, or decompile the Uniqode IP or otherwise attempt to determine its underlying source code.
  3. Sell, lease, sublicense, rent, lend, or provide any portion of the Uniqode IP to any third party or allow the use of the Uniqode IP by or for the benefit of any person other than its Permitted Users.

(Collectively, “IP Restrictions”).

For the purposes of this Agreement, “Intellectual Property Rights” shall mean all patents, inventions, discoveries, registered and unregistered rights in respect of copyright, industrial and other designs, databases, circuit layouts, trademarks, domain names, know-how, confidential information trade secrets, and all other intellectual property.

13. Customer/Permitted-User Requirements & Conduct

As used herein, any electronic data, text, messages, or other materials, including personal data of such Permitted Users provided by Customer or any Permitted Users, or any usage metrics generated by the System based on performance of the Services using such Customer-provided data shall be referred to as “Service Data.”

Customer shall ensure that neither it nor any Permitted Users will, in connection with their use of the Uniqode Services, upload, share, or otherwise distribute any Service Data in violation of Acceptable Use or the other terms of this Agreement.

Uniqode reserves the right, in its sole discretion, to remove any Service Data that, in its good faith judgment, fails to comply with the terms of this Agreement, any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. Uniqode shall not be responsible for any failure or delay in removing such content or any business consequences of removing the same.

14. Service Data

As between the parties, all right, title, and interest in and to Service Data remain vested in Customer, and Customer hereby grants Uniqode a non-exclusive, worldwide, royalty-free license to use, transmit, distribute, modify, reproduce, display, store, and process Service Data to the extent necessary for Uniqode to make available and provide the Uniqode Services to Customer and/or Permitted Users and to perform its obligations under the Agreement.

Uniqode shall not process the Service Data for any other purpose than what is mentioned in this Agreement, the Data Processing Agreement (“DPA”), and the privacy policy (available at: https://www.uniqode.com/privacy). Uniqode certifies that it understands the restrictions in this Section 14 and will comply with such restrictions. In no circumstances shall Uniqode share such Service Data or use such Service Data for the benefit of Uniqode’s other customers.

Customer understands and acknowledges that, in connection with the use of the Service by the Customer, its Permitted Users, and/or End Users, Uniqode shall process any personal data only that is part of the Service Data on the Customer’s behalf and as a data processor. Uniqode shall provide reasonable cooperation to assist Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Information under this Agreement and the DPA when Customer is required to respond to such requests under applicable data protection laws. In the event that any such request is made directly to Uniqode, Uniqode shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so.

If the Customer is a resident of the EEA (including the UK and Switzerland), the processing of such Customer’s personal data outside EEA will be governed by the Data Processing Agreement available here (available at: https://trust.uniqode.com/d/dpa-online/6F2cmP). For U.S. Customers subject to the California Consumer Privacy Act (CCPA) and similar state privacy laws, the DPA will also govern Uniqode’s processing of personal data from those states.

Customer represents and warrants that it has complied with any applicable laws, including any anti-spam, opt-in, data protection, data privacy, and security laws for any Service Data created by and/or provided by Customer or Permitted Users to Uniqode related to the provision of the Uniqode Services, and for any instances that Customer or any Permitted User provides sensitive personal information as defined in the DPA. Customer shall be solely liable and responsible for any violations of laws related to the processing of sensitive personal information.

Uniqode shall ensure that any person Uniqode authorizes to process Service Data shall protect the Service Data in accordance with Uniqode’s confidentiality obligations under this Agreement. Customer acknowledges and agrees that Uniqode and its group companies may access or disclose information about Customer, Customer's account, Permitted Users including Service Data, in order to (a) comply with the law or respond to lawful requests or legal processes; or (b) prevent any infringement of Uniqode’s or its group companies’ customers’ proprietary rights. Further, at Uniqode’s sole discretion, any suspected fraudulent, abusive, or illegal activity by Customer may be referred to law enforcement authorities.

15. Anonymous Data

Notwithstanding anything to the contrary herein, Customer grants Uniqode a royalty-free license and right to aggregate, collect, and analyze Service Data relating to the provision, use, and performance of the Service(s) and to use (during and after the term of this Agreement) such Service Data to develop and improve the Service(s), and create de-identified, aggregated, or anonymous data which may, in part, include processing of and anonymizing Service Data (“Anonymous Data”) for the purposes of operating, analyzing, developing, improving, or marketing the Uniqode Services, provided always that any such Anonymous Data will in no circumstances identify Customer or any Permitted User or enable the identification of same and that all persistent identifiers have been removed.

Customer agrees that such Anonymous Data shall be owned by Uniqode, where such Anonymous Data excludes any Service Data, and in the event that Customer obtains any ownership of such Anonymous Data, Customer does hereby grant, convey, and transfer all rights in such Anonymous Data to Uniqode.

16. Service Usage Data

For the purpose of providing, improving, and securing the Uniqode Services, Uniqode may collect and use data relating to the usage by Customer and/or Permitted Users of the Uniqode Services, including without limitation monitoring and analyzing usage and traffic patterns of its websites and Uniqode Services and for better ensuring the security of the Services. Such usage data:

  1. Is not Service Data.
  2. Does not include any personal information about Customer or Permitted Users.
  3. Is owned by Uniqode.

17. Confidentiality

Any data and information, whether written, oral, or visual, including data and information that at the time of disclosure by the disclosing party to the receiving party is identified as ‘confidential’ or which, based upon the content and circumstances of disclosure, would lead a reasonable person to conclude such data and information to be ‘confidential’ shall be deemed “Confidential Information.”

For the purpose of this Agreement, Service Data also forms a part of the Confidential Information.

If Customer chooses, or Customer is provided with, a user identification code, login, password, or any other piece of information as part of Uniqode’s security procedures, Customer must treat such information as confidential. Customer must not disclose it to any third party. Uniqode has the right to disable any user identification code or password, whether chosen by Customer or allocated by Uniqode, at any time, if in Uniqode’s reasonable opinion, Customer has failed to comply with any of the provisions of this Agreement.

Uniqode will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Customer’s Account as a result of Customer’s non-compliance with its obligations under Section 17.

Each party shall hold the Confidential Information of the other party in confidence, use the same only to meet its obligations under the Agreement, and not disclose such Confidential Information to any third party, save as expressly permitted by this Section 17. Each party may share the Confidential Information with those of its servants and agents that have a bona fide reason to receive the same in furtherance of the sharing party’s obligations under the Agreement provided:

  1. The sharing party remains liable for the breach of this section by its servants and agents receiving Confidential Information.
  2. Any such receiving servants and agents are similarly bound by broadly comparable obligations of confidentiality.

Notwithstanding the foregoing, Confidential Information shall not include information that:

  1. Was already known by the receiving party through legitimate means.
  2. Is in the public domain, or becomes so, without fault of receiving party.
  3. Is independently derived by the receiving party without access to the Confidential Information of the other party.
  4. Is obtained from a third party absent breach of any obligations of confidentiality.

Any breach of this provision by either party may cause irreparable harm to the other party for which monetary damages would be an inadequate remedy. Consequently, the non-breaching party shall be entitled to seek injunctive or other equitable relief from the court without proof of loss.

18. Data Security and Privacy

Uniqode shall use appropriate technical and organizational measures to protect the Service Data. The measures used are designed to provide a level of security appropriate to the risk of processing the Service Data.

Uniqode shall, without undue delay, notify the Customer of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Service Data processed by Uniqode.

The Customer warrants to Uniqode that:

  1. It has established notices or policies for and ensures compliance with all applicable data protection laws relating to the collection, processing, and transmission of personal data forming part of Service Data.
  2. It has obtained and maintains necessary authorizations, lawful bases, approvals, and permissions for Uniqode to process such personal data for the purpose of providing Service(s).

Customer is responsible for processing such personal data by Uniqode to provide the Service(s) and the loss, damage, destruction, and unlawful transmission of personal data in violation of this Section. Customer acknowledges and agrees that Uniqode shall have no liability for claims arising from Customer’s failure to comply with this Section 18.

The Uniqode Services are not intended to be used for the storing or processing of personal data, and any Service Data containing personal data/personally identifiable information/personal information (“Personal Data”) is at the discretion and risk of Customer and/or Permitted Users.

In the case of any Personal Data processed in connection with the Uniqode Services, as between the parties, Customer shall remain the owner and data controller of its Personal Data, and Uniqode shall be the data processor, in which capacities the parties shall each comply with their respective obligations under then-applicable data privacy laws.

In particular, Customer undertakes to comply with the applicable laws in respect of its collection of data and Personal Data for use by Customer and/or Permitted Users in their use of the Uniqode Services. Collection and use of Personal Data by Uniqode in connection with the provision of the Uniqode Services will be governed by the terms set out in Uniqode’s current privacy policy (available at: https://www.Uniqode.com/privacy) and the DPA.

19. Warranty & Disclaimer

19.1 Limited Warranty

Uniqode represents and warrants that it has all necessary authority to enter into this Agreement and all necessary rights, title, and interest to enable Uniqode to perform its obligations under this Agreement, including the provision of Uniqode Services.

19.2 Warranty Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 19.1, UNIQODE MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, NOR ANY WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING.

UNIQODE DOES NOT WARRANT THAT THE UNIQODE SERVICES AND/OR USAGE OF THE PRODUCTS WILL BE FREE OF INTERRUPTIONS, ERRORS, BUGS, VIRUSES, OR SECURITY ISSUES OR THAT THEY WILL MEET ANY SPECIFIC CUSTOMER OR PERMITTED USER REQUIREMENTS. CUSTOMER AGREES THAT IT IS FOR CUSTOMER TO VALIDATE THAT THE UNIQODE SERVICES MEET THE SPECIFIC NEEDS OF CUSTOMER AND/OR PERMITTED USERS.

20. Indemnity

20.1 Uniqode Indemnity

Uniqode hereby agrees to indemnify and defend Customer, its directors, officers, and employees (“Indemnified Customer Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by Indemnified Customer Parties, arising out of any third-party claim:

  1. That Customer’s receipt, access, and use or possession of the Uniqode Services and/or Products infringed the Intellectual Property Rights of a third party (“IP Claim”).
  2. For death or bodily injury resulting from the negligence of Uniqode, its servants, or agents.

Notwithstanding the foregoing, Uniqode shall have no liability or obligation to indemnify Indemnified Customer Parties against any IP Claim to the extent such IP Claim results from:

  1. Any modification or unauthorized use of the Uniqode Services and/or the Products (collectively, “Deliverables”).
  2. Any serious breach of this Agreement by Customer and/or Permitted Users.

20.2 IP Claim

If the provision by Uniqode of any Deliverable becomes the subject matter of a third-party IP Claim that does not fall within the Indemnity Exclusions, Uniqode may, at its option:

  1. Obtain for Customer and/or Permitted Users the right to continue using the affected portion of the Deliverables.
  2. Replace or modify the affected portion of the Deliverables.

If either of the above options are not reasonably available, Uniqode may immediately terminate this Agreement upon giving 15 calendar days’ prior written notice to Customer. This Section 20 states Uniqode’s sole and exclusive liability with respect to any IP Claim (whether actual or alleged) resulting from Uniqode’s provision of Deliverables (or any part thereof) pursuant to this Agreement.

20.3 Customer Indemnity

Customer hereby agrees to indemnify and defend Uniqode, its directors, officers, and employees (“Indemnified Uniqode Parties”) from and against all costs, expenses (including reasonable attorneys’ fees), liabilities, and damages suffered by the Indemnified Uniqode Parties, arising out of any third-party claim:

  1. Based on violation by Customer and/or any Permitted User of any applicable law or any violation of the Acceptable Use or other applicable section of this Agreement.
  2. That Uniqode’s storage or use of Service Data in accordance with this Agreement infringed the Intellectual Property Rights of a third party.
  3. For death or bodily injury resulting from the negligence of Customer, its servants, or agents.

The indemnification obligation set forth above will survive the termination or expiration of this Agreement.

21. Liability

21.1 Exclusion of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL UNIQODE, ITS SERVANTS, AND AGENTS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF A STATUTORY DUTY, OR OTHERWISE, FOR ANY PURE ECONOMIC LOSS, LOST PROFITS, LOST BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS, REPUTATIONAL DAMAGE, LOST GOODWILL, LOST (INCLUDING THEFT THROUGH HACKING) OR CORRUPTED DATA OF CUSTOMER OR ANY THIRD PARTY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE UNIQODE SERVICES OR THIS AGREEMENT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSSES.

21.2 Limitation of Liability

UNIQODE’S ENTIRE LIABILITY FOR ALL CLAIMS IN AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF DELIVERABLES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, IS LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO UNIQODE FOR THE UNIQODE SERVICES DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.

21.3 Exceptions to Liability Limitation

NOTWITHSTANDING SECTIONS 21.1 AND 21.2 ABOVE, NEITHER PARTY SEEKS TO EXCLUDE LIABILITY FOR WILLFUL DEFAULT, FRAUD, DEATH, OR BODILY INJURY RESULTING FROM ITS NEGLIGENCE AND/OR ANY OTHER MATTER FOR WHICH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW (COLLECTIVELY, “LIABILITY CAP EXCEPTIONS”). CONSEQUENTLY, THE EXCLUSIONS AND LIMITATION SET OUT IN SECTIONS 21.1 AND 21.2 ABOVE SHALL NOT APPLY TO LIABILITY CAP EXCEPTIONS.

21.4 Fairness of Liability Provision

CUSTOMER ACKNOWLEDGES AND AGREES THAT UNIQODE HAS ENTERED INTO THIS AGREEMENT AND PROVIDED CUSTOMER AND PERMITTED USERS WITH ACCESS TO THE UNIQODE SERVICES FOR THE AGREED LEVEL OF FEES IN RELIANCE UPON THE EXCLUSIONS OF LIABILITY SET FORTH IN SECTION 21.1, THE LIMITATION OF LIABILITY SET FORTH IN SECTION 21.2, AND THE EXCEPTIONS TO LIABILITY LIMITATIONS SET OUT IN SECTION 21.3 (COLLECTIVELY, “AGREED RESTRICTIONS”). CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT AS AN ESSENTIAL CONDITION OF UNIQODE ENTERING INTO THIS AGREEMENT AND PROVIDING THE UNIQODE SERVICES, SUCH AGREED RESTRICTIONS REFLECT A REASONABLE AND FAIR ALLOCATION OF THE RISK BETWEEN UNIQODE AND CUSTOMER, UPON WHICH THE AMOUNT OF THE FEES HAS BEEN PREDICATED AND AGREED.

22. Term, Renewal & Termination

22.1 Term

This Agreement is effective as of the Effective Date and shall continue in effect for the Initial Term (as defined in an Order Form), unless terminated earlier as provided herein. After the Initial Term and unless terminated earlier, this Agreement shall automatically renew for additional renewal terms (each, a “Renewal Term” as defined in an Order Form). The Initial Term and any Renewal Terms hereunder shall be collectively referred to as the “Term.” Either Party may terminate this Agreement by providing written notice to the other Party no later than ninety (90) days prior to the start of a Renewal Term, whereupon this Agreement shall terminate at the end of the Initial Term or Renewal Term, as applicable, in effect at the time of such notice.

22.2 Termination for Cause

Either party may terminate the Agreement by notice in writing in the following circumstances:

  1. The other party materially breaches the Agreement and fails to cure such breach within 20 calendar days of a written request by the non-breaching party to do so.
  2. The other party becomes insolvent or generally unable to pay its bills.
  3. Uniqode may terminate the Agreement for cause where Customer has failed to pay any Fees that are at least 10 calendar days in arrears following the issuance by Uniqode of a written request for payment.

22.3 Suspension

Uniqode may without notice suspend access to the Uniqode Services in circumstances where:

  1. Fees are overdue on the Customer’s Account.
  2. Customer and/or Permitted Users are non-compliant with Acceptable Use.
  3. Customer is in breach of any provision of the Agreement.
  4. Suspension is advisable to prevent or mitigate any damage or harm to Uniqode Services or other users.
  5. Uniqode intends to perform maintenance, updates, or improvements to the Uniqode Services.

22.4 Consequences of Termination

  1. Termination by Uniqode: In the event Uniqode terminates the Services of the Customer in accordance with this Agreement, Uniqode reserves the right to delete all Service Data in its possession within thirty (30) days upon canceling such Customer's Account.
  2. Consequences of Termination: Upon termination of Customer’s Account for any reason:
    • Uniqode shall disable all access of Customer and Permitted Users to the Uniqode Services.
    • Customer shall pay all amounts due and payable to Uniqode upon demand.
    • Uniqode shall not be liable to refund any amounts paid in advance by Customer for the Uniqode Services.
  3. Data Retention: In the event the Customer’s Account(s) remains inactive for a period of twelve (12) months (“Dormant Status”), Uniqode reserves the right to delete all Service Data in its possession within thirty (30) days upon the Customer Account reaching Dormant Status. Without prejudice to the foregoing, in the event Customer is terminating their Account with Uniqode, Customer can request deletion of their Service Data by reaching out to privacy@Uniqode.com, and Uniqode shall delete all the Service Data in its possession within thirty (30) days from the date of such request. Notwithstanding anything to the contrary, all Fees paid by the Customer to Uniqode are non-refundable, except when a Customer terminates the Account within 30 days from the date of becoming a paid Customer of Uniqode. In such cases, all Fees paid by Customer are fully refundable.

23. Miscellaneous Provisions

23.1 Force Majeure

Neither party will be in default of its failure to perform any obligation hereunder (other than any payment obligation) to the extent that its non-performance results from causes beyond its reasonable control, including, without limitation, acts of God, civil commotion, epidemics and pandemics (together with the resulting consequences or mitigations of same), strikes, labor disputes, internet service disruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements. Upon the duration of any such event of force majeure continuing for longer than 10 calendar days, the other party may terminate this Agreement for its own convenience, without incurring additional liability.

23.2 Assignment

  1. General Rule: Subject to Subsection (b) of this Section 23.2, neither party may assign, novate, or otherwise transfer any of its rights and/or obligations under this Agreement to any person without the prior written consent of the other party, and any attempt to do so will be void.
  2. Uniqode’s Exception: Notwithstanding Subsection (a) of this Section 23.2, Uniqode may, without consent, assign this Agreement to an Affiliate or in connection with any merger, acquisition, reorganization, or other transfer of all or substantially all of its assets.

23.3 Notices

All notices made under or in connection with this Agreement must be in writing and sent to the other party at the address for such other party first set out in this Agreement or, in the case of the Customer, at the address provided by Customer at the time the order for Uniqode Services was placed. Either party may elect to change its address for the purposes of receiving notices pursuant to this Agreement by providing the other party with written notice of such change. In the event of a termination under Section 22.1, Customer may provide notice through the Website, if such functionality is present at the time of such termination notice.

23.4 Survival

Each party’s obligations under this Agreement, which by their nature would continue beyond the termination, cancellation, or expiration of this Agreement, shall survive such termination, cancellation, or expiration.

23.5 Waiver

Any waiver or purported waiver shall be void unless made in writing, and neither party’s failure to exercise any of its rights under this Agreement shall constitute or be deemed a waiver or forfeiture of any such rights.

23.6 Entire Agreement

This Agreement sets forth the entire agreement between the parties as to the matters set out herein and supersedes any prior agreement or communication. Any subsequent modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by both parties.

23.7 Severability

If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of the Agreement shall continue to be valid, and such impacted provision shall be deemed modified to the extent necessary to render such provision enforceable, while preserving to the fullest permissible extent the intent of the parties.

23.8 Governing Law & Jurisdiction

The Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, and each party submits to the exclusive jurisdiction of the courts of New York City.

Signatures

In Witness Whereof, the parties hereto have caused this Agreement to be executed by the undersigned, which they represent to be their duly authorized representatives, on the dates set forth below to be effective as of the Effective Date. This Agreement may be signed in Counterparts. Digital signatures are acceptable.