Effective as of May 25, 2018, Simplifyd Limited, (“Tubular”) have updated our Terms of Service (“Terms”).
THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND TUBULAR AND GOVERN USE OF AND ACCESS TO THE SERVICE AND WEBSITE BY YOU, USERS, AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.
By accepting these Terms, or by accessing or using the Service or Website, or authorizing or permitting any User or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Tubular that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means all Tubular accounts or instances created by or on behalf of Subscriber within the Service.
API: means the application programming interfaces developed and enabled by Tubular that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
Beta Services: means a product, service or functionality provided by Tubular that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
Confidential Information: means all information disclosed by You to Tubular or by Tubular to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service or describing Service Plans, as applicable, provided or made available by Tubular to You in the applicable Tubular help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
End-User: means any person or entity other than Subscriber or User with whom Subscriber or its Users interact using the Service.
GDPR: means Regulation (EU) 2016/679 of the European Parliament and of the Council (General Data Protection Regulation).
Order Form: means any Tubular generated service order form executed or approved by You with respect to Your subscription to the Service, which form may detail, among other things, the number of Users authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Tubular Service.
Personal Data: means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service: means the on-demand product excellence system, and tools and services provided by Tubular, including, individually and collectively, Software, the API and any Documentation. Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (“Updates”) are also subject to these Terms and Tubular reserves the right to deploy Updates at any time.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Website applicable to the Service) for the Services to which You subscribe.
Website: means www.tubular.io and other websites that Tubular operates
Software: means software provided by Tubular (either by download or access through the internet) that allows Users and End-Users to use any functionality in connection with the Service.
Subscription Term: means the period during which You have agreed to subscribe to the Service with respect to any individual User.
User: means an individual authorized to use a Service through Your Account as an administrator, editor, contributor, and/or viewer as identified through a unique login.
Service Data or Your Data: means all electronic data, text, messages or other materials submitted to the Service by You, Users and End-Users in connection with Your use of the Service, including, without limitation, Personal Data.
Tubular: means Simplifyd Limited, a UK registered Limited company, corporation or any of its successors or assignees. In these Terms, Tubular may also be referred to through the use of “We” or “Our.”
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE
2.1 During the Subscription Term and subject to compliance by You, Users, and End-Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan You subscribe to for Your internal business purposes. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Tubular from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.2 A high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by Tubular, including Secure Socket Layer (SSL) protocol or other protocols accepted by Tubular, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Users or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Tubular. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Users and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to Process Personal Data on behalf of any third party other than Users or End-Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Tubular, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Users and End-Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Users available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Users permitted under Your subscription to the Service. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. You will not share a User Login among multiple individuals. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account.
2.5 In addition to Our rights as set forth in Section 2 and 7.4, Tubular reserves the right, in Tubular’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Tubular will use commercially reasonable efforts to notify You in advance both through Our forum page and a notice to Your Account owner and Users) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Users or End-Users. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (GMT time zone) and other off-peak hours.
2.6 You acknowledge that Tubular may modify the features and functionality of the Service during the Subscription Term.
2.7 You may not access the Service if You are a direct competitor of the Tubular, except with Tubular’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
2.8 If You register for a free trial for the Service, We will make the Service available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the Service; (b) the start date of any subscription to the Service purchased by You for such Service; or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
ANY SERVICE DATA YOU ENTER INTO THE SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
2.9 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
3.1 Subject to the express permissions of these Terms, You and Tubular will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between You and Tubular entered prior to these Terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Your Data.
3.2 Tubular will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality, and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through Service at Your election. Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.
3.3 You agree that Tubular and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.5.
Tubular may also access or disclose information about You, Your Account, Users or End-Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Tubular’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
3.5 You acknowledge in all cases that Tubular acts as the processor of such Personal Data and You remain the controller of such Personal Data for GDPR and any other applicable Personal Data protection regulations. You understand that if You give an integration provider access to Your Tubular account, You serve as the controller of such information and the integration provider serves as the processor for the purposes of those data laws and regulations that apply to You. In no case are such integration providers our subprocessors. The Exhibit A to these Terms includes Data Processing Agreement between You and Us which shall govern the terms of our Processing of Service Data, unless we entered into a separate Data Processing Agreement and unless neither you nor us are required to enter into a data processing agreement taking into account the nature of Service Data, location of Users and other aspects of the Services provided by Us to You.
Your Data is currently hosted by Tubular or its authorized service partners in AWS data centers located in the London and Ireland. If Your principal location is within the European Economic Area or the United States, we will use commercially reasonable efforts to notify You at least thirty (30) days before our election to host Personal Data provided to Tubular in connection with use of the Service in data centers located outside the European Economic Area or the United States. If You are entitled to this notice and do not wish to have Your Personal Data hosted in data centers located in such other country or territory, You may terminate Your Subscription and Your Account with immediate effect upon written notice to Tubular within 30 days or Your receipt of such notice.
If you have any questions about your personal data, please contact us at email@example.com
4. INTELLECTUAL PROPERTY RIGHTS
Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Users and End-Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Tubular. Tubular shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You Users, or End-Users, or other third parties acting on Your behalf. Tubular, and Tubular’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Tubular (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Tubular, its services or products.
5. COPYRIGHT POLICY
We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes the copyright or other intellectual property infringement (“Infringement”) of any person.
If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement that is taking place through the Service, you must submit your notice in writing to the attention of “Copyright Infringement” of firstname.lastname@example.org and include in your notice a detailed description of the alleged Infringement.
In cases where there are conflicting claims to the ownership of Copyright, it is our policy to air on the side of removing materials from our Service.
Complaints under the Copyrights, Designs and Patents Act 1988, and European Commerce Directive 2000
If you wish to make a complaint/request that certain material be taken down, please send a request in writing to our Notice and Takedown Officer.
We, Simplifyd Limited, are committed to ensuring that the material displayed on our Service is lawful and in accordance with our UK and EU Copyright Law. To help us deal with your complaint as quickly as possible, please include the following information in your correspondence and mark it as “URGENT”:
Your contact details – including your name, email address and daytime telephone number.
Identify the material in question – please include sufficient detail to enable us to identify the material complained of.
The reasons for your objection.
We will review each objection on its merits and pending our inquiries, may remove or disable access to the relevant material from our Service.
Where appropriate, you should include information relating to the status of the material in question (i.e. Where you hold a Trademark, or own the Copyright to an image). This will enable us to deal with your request promptly.
You can contact our Notice and Takedown Officer via email at email@example.com
6. THIRD PARTY SERVICES
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Tubular with respect to such Other Services. Tubular is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Tubular to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Unless otherwise indicated on a Form referencing these Terms and subject to Section 7.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You, Users and End-Users.
7.2 If You choose to upgrade Your Service Plan or increase the number of authorized Users during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then-current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
7.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Tubular does not accept any liability for such loss. Tubular reserves the right to contact You about special pricing if You maintain an exceptionally high number of Users, End-Users or other excessive stress on the Service.
7.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Tubular based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7.5 If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Tubular, or they may obtain a receipt from within the Service to track subscription status. You hereby authorize Tubular to bill Your credit card or another payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan until you terminate your Subscription, and you further agree to pay any Subscription Charges so incurred. Tubular uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for Tubular.
8. CANCELLATION AND TERMINATION
8.1 Either You or Tubular may elect to terminate Your Account and subscription to the Service as of the end of your then-current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences.
8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is canceled.
8.3 If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Section 2.5(c) or 8.4, in addition to other amounts You may owe Tubular, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by Tubular, provided that You provide advance notice of such breach to Tubular and afford Tubular not less than thirty (30) days to reasonably cure such breach.
8.4 Tubular reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Users’ and/or End-Users’ rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Users or End-Users have violated these Terms. This includes the removal or disablement of Your Data in accordance with Our Copyright Infringement Notice and Takedown Policy. Unless legally prohibited from doing so, Tubular will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Tubular shall not be liable to You, Users, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Users or End-Users may be referred to law enforcement authorities at Our sole discretion.
9. PROMOTIONAL CREDITS POLICY
We may, at Our sole discretion, choose to offer credits for the Service in various ways, including but not limited to, coupons, promotional campaigns, and referrals for Tubular services such as training. Tubular reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Tubular when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
10. DISCLAIMER OF WARRANTIES
THE WEBSITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND Tubular EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT Tubular DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM Tubular OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION OF LIABILITY
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TUBULAR’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TUBULAR WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. TUBULAR HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, TUBULAR’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12.1 Tubular will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). Tubular shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Tubular for such defense, provided that (a) You promptly notify Tubular of the threat or notice of such IP Claim, (b) Tubular will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim, and (c) You fully cooperate with Tubular in connection therewith. If use of the Service by You, Users or End-Users has become, or in Tubular’s opinion is likely to become, the subject of any such IP Claim, Tubular may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Tubular, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to Tubular for the corresponding unused portion of Your Subscription Term. Tubular will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Tubular; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.
The provisions of this Section 11.1 state the sole, exclusive and entire liability of Tubular to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You, Users or End-Users.
12.2 You will indemnify and hold Tubular harmless against any claim brought by a third party against Tubular arising from or related to use of the Service by You, Users or End-Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
13. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
13.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Tubular’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You in connection with any merger or change of control of Tubular or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2 These Terms, together with any Form(s), constitute the entire agreement and supersede any and all prior agreements between You and Tubular with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which you represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features or functionality Tubular offers through the Service (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any User designated as an administrator on your Account activates the feature or functionality. Where there’ is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
13.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Tubular as Your consent to any such amendment. Tubular’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
15. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 1, 3, 4 and 9-18 shall survive any termination of our agreement with respect to use of the Service by You, Users or End-Users. Termination of such agreement shall not limit Your or Tubular’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
All notices to be provided by Tubular to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by You on any Form; or (ii) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to us in writing by Courier or Mail to the following address: Tubular, Simplifyd Limited, Suit 3, Samuel House, Thame, Oxon OX9 3NU, United Kingdom. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
18. GOVERNING LAW
These Terms shall be governed and construed in accordance with the laws of England and Wales, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.