IF YOU SIGN UP FOR ONIONSKIN SERVICE(S), BETA SERVICES, AND/OR TRIAL SERVICES (WHETHER PAID OR UNPAID), EITHER BY EXECUTING AN ORDER REFERENCING THESE TERMS AND/OR ORDERING OR SIGNING UP THROUGH OUR WEBSITE OR MOBILE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.These Terms and Conditions (the “Terms and Conditions”) together with any Order (defined below) and any other documents incorporated by reference within these Terms and Conditions or an Order (collectively, the “Agreement”) is entered into by and between Onionskin and the legal entity, including its Affiliates (collectively “Client”) identified in the applicable Order (either online or signable). Both Onionskin and Client are referred to hereinafter as a “Party”, and together, the “
Parties.”1.Definitions. Any capitalized terms not otherwise defined herein, shall have the meanings set forth below:
“Affiliate” means, with respect to any legally recognizable entity, any other entity Controlling, Controlled by, or under common Control with such entity. “Control” means direct or indirect (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity, or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. An entity will be deemed an Affiliate only so long as Control exists. “Beta Service” means a product, service or functionality provided by Onionskin that may be made available to Client to try at Client’s option at no additional charge, which is designated as beta, limited release, early access, or by a similar description. “Client Data” means the information successfully uploaded by Client to any Onionskin Service and stored on Onionskin’s servers. “Client-Software” means any software application provided by Onionskin to Client (and its Users) for installation and use by Client (and its Users) on a personal computer or tablet to enable access to and/or use of the applicable Onionskin Service(s), including any Updates thereto provided by Onionskin during the Term. “Content Service” means that portion of any Onionskin Service which provides, distributes, performs, broadcasts, or otherwise makes available any data, data structure, metadata, metrics, charts, graphs, literature, or other content in any form and/or any derivatives thereof, including, where applicable, all Updates delivered thereto (but at all times excluding Client Data). “Deliverables” has the meaning set out in Section 13 “Onionskin Service(s)” means each and all proprietary software-as-a-service solution(s) developed by Onionskin, as described in more detail in the applicable Documentation. For clarity, Onionskin Service(s) include the Content Services. “Documentation” means the training materials, specifications, and technical information regarding any Onionskin Service and Client-Software provided by Onionskin to Client and its Users (either in electronic form or otherwise), and all other information and User instructions regarding the capabilities, operation, installation and access to the Client-Software and the Onionskin Service(s). For the avoidance of doubt, Documentation may be made available through Onionskin’s electronic services portal. "Effective Date" means the date Client executes an Order with Onionskin, either by signature or electronically through Onionskin’s website(s). “Order” or “Order Form” means an order document that (i) explicitly incorporates these Terms and Conditions, (ii) describes the provision of one or more Onionskin Service(s) and/or Professional Services by Onionskin to Client, and (iii) is executed by both Onionskin and Client, either by signature or electronically through Onionskin’s website(s). “Professional Services” means those specific services (if any) agreed to in an Order to be delivered by Onionskin in connection with a Onionskin Service (including any services identified as professional services, managed services, or implementation services in an Order) “Professional Services Term” means the term during which Professional Services shall be performed, being either (a) as specifically identified in the applicable Order where Professional Services are ordered; or (b) if no term is identified within such Order, then from the Effective Date of such Order until completion of the Professional Services identified therein. “Statement of Work” or “SOW” means a separately executed document, solely for Professional Services to be provided in connection with a Onionskin Service (such Onionskin Service purchased under a separate Order). “Subscription Fees” means the fees for the right to access and use a Onionskin Service and Client-Software as set out in the applicable Order. “Term” has the meaning set out in Section 3. “Third-Party Provider” means a supplier of data, information, software, services or other items that are part of or otherwise used in connection with the Content Services. “Trial Service” means any Onionskin Service or Professional Service provided by Onionskin that may be made available to Client to try at Client’s option at no additional charge, which is designated as evaluation, trial, pilot, non-production test, or by a similar description. “Updates” means corrections, bug fixes, patches, modifications, updates and enhancements that Onionskin, in its sole discretion, makes generally available to its customer base. “User” means an individual identified by Client as authorized to access a Onionskin Service in accordance with the applicable Order. “User ID” means a unique alphanumeric identifier assigned to a User so that the User can access Client Data and use the corresponding authorized features of a Onionskin Service.
2.Provision of Products and Services. During the Term, Onionskin will make the Onionskin Service(s) specified in the Order available to the Client and its Affiliates (subject to any restrictions in the Agreement, including number of Users and, with respect to Affiliates, Section 4.3). Client will provide Onionskin with all necessary and reasonable cooperation to enable Onionskin to perform its obligations under the Agreement. 3.Term. The Term of this Agreement begins on the applicable Effective Date and will continue for the period identified as the “Initial Term” in the Order (“Initial Term”). If no specific Initial Term period is stated in the Order, the Initial Term shall be one year. After the Initial Term, the term of the Agreement will automatically renew for additional one (1) year terms (“Renewal Term”), unless either Party provides the other written notice of non-renewal no later than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. Onionskin may implement revised pricing for any Renewal Term by giving written notice of the new pricing to Client at least sixty (60) days prior to the commencement of a Renewal Term and the pricing will apply to the Renewal Term unless Client provides written notice of non-renewal in accordance with this Section. Collectively each Initial Term and each Renewal Term (if any) constitute a “Term” in respect of the applicable Order. 4.Access Right; Restrictions.
4.1. Access Rights. During the Term and conditioned upon Client’s compliance with all the terms of the Agreement, Onionskin grants to Client, a limited, non-exclusive, non-transferable, and non-sublicensable right to allow Users to, in accordance with the Agreement, access and use the applicable Onionskin Service(s) set out in the relevant Order solely for Client’s internal business purposes. Client’s Users may only access such Onionskin Service(s) through Onionskin’s web site and the Client-Software. As part of any implementation of each Onionskin Service, Client will identify in writing the Users, who will be assigned User IDs. For the avoidance of doubt, if applicable pursuant to the relevant Order, any Content Services described thereunder shall be Onionskin Service(s) and subject to the restrictions set forth herein.
4.2. Client-Software. During the Term and conditioned upon Client’s compliance with all the terms of the Agreement, Onionskin grants Client a limited, non-exclusive, non-transferable, and non-sublicensable right to install and use the applicable Client-Software on the supported hardware platform solely in order for Users to access the applicable Onionskin Service(s) as permitted.
4.3. Affiliates. To the extent that Client is purchasing access on behalf of its Affiliates, Client irrevocably and unconditionally guarantees the compliance of each Client Affiliate with the Agreement and will be jointly and severally liable with each Client Affiliate for breach of the Agreement. All remedies available to Onionskin, including the ability to obtain injunctive relief, will apply to such Client Affiliates, and Client will reasonably assist Onionskin in enforcing Onionskin’s rights and remedies against such Client Affiliates. Client’s Affiliates may enter into an agreement with Onionskin on the same terms as Client under this Agreement by entering into an Order referencing the agreed terms between Client and Onionskin. Any such Order shall be its own separate agreement between Onionskin and the Client Affiliate, running on its own term, and the termination of this Agreement shall not terminate such separate agreement (or vice versa). For the avoidance of doubt, where the Client Affiliate is based outside the Client’s country, a Onionskin Affiliate (where applicable) may enter into such Order in lieu of Onionskin, and pricing may be converted to a local currency where such local currency is supported by the Onionskin Affiliate.
4.4. Reservation of Rights. Except for the limited rights set forth in Section 4.1 and 4.2 above, Client does not acquire any intellectual property or other rights, express or implied, in or relating to any ClientSoftware or Onionskin Service(s). Onionskin reserves title, ownership, and all other rights to all Client-Software and Onionskin Service(s). Client and Users will not remove, obscure, or alter Onionskin’s copyright notices, trademarks, other proprietary rights notices, or any other content of any kind appearing in the Onionskin Service(s), Client-Software, or Documentation. For the avoidance of doubt, ownership of all Content Services (including any products or components contained therein) belongs to Onionskin or its Third-Party Providers and nothing in this Agreement shall transfer or assign any right, title or interest in the applicable product or components of the Content Services to the Client.
4.5. Restrictions. Client must not, and represents and warrants it will not, use the Onionskin Service(s) in any manner that is not described in the Documentation or in any manner that is prohibited by the Agreement. Client is responsible for all access and use of the Onionskin Service(s) and Client-Software by its Users and any person that gains access through Client or any of its Users or User IDs.
4.6. Restrictions on Use. Client must not and must ensure that Users do not, directly or indirectly, ( i) reverse engineer, disassemble, decipher, translate, decompile, prepare derivative works of the Onionskin Service(s) or Client-Software or otherwise attempt to access, imitate, derive or discover the source code thereof; (ii) upload any Client Data or any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (iii) infringe the intellectual property rights of any third party in connection with use of the Onionskin Service(s), Client-Software or Documentation (including by uploading Client Data to the Onionskin Service(s)); (iv) interfere with or disrupt Onionskin’s software, the Onionskin systems used to host the Onionskin Service(s), other equipment or networks connected to the Onionskin Service(s), or disobey any requirements, procedures, policies or regulations of networks connected to the Onionskin Service(s) made known to Client; (v) license, sell, rent, lease, lend, transfer, outsource, sublicense or otherwise provide access to the Onionskin Service(s) or Client-Software or utilize the Onionskin Service(s) for the benefit of a third party, including through a service bureau, commercial timesharing arrangement, or application service provider (ASP) arrangement; (vi) provide publicly, or make publicly available, any links, hypertext (Universal Resource Locator (URL) address) or otherwise (other than a “bookmark” from a Web browser) to the Onionskin Service(s), or any part thereof; (vii) circumvent the User authentication or security of the Onionskin Service(s) or any host, network, or account related thereto; (viii) perform any penetration testing on or with respect to the Onionskin Service(s), including use of any tools, code or instruction intended to fuzz, damage, destroy, alter, reveal any portion or expose vulnerability of the Onionskin Service(s) (unless specifically authorized by Onionskin in writing); (ix) mirror the Onionskin Service(s) on any server; (x) make any use of the Onionskin Service(s) that Onionskin reasonably believes is abusive or that violates any applicable local, state, national, international or foreign law; (xi) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Onionskin Service(s); (xii) allow any non-Users to use any User IDs, code(s), password(s), or other mechanisms issued to, or selected by, Client or Users for access to the Onionskin Service(s); (xiii) use the Onionskin Service, in whole or in part, in any manner that competes with Onionskin or its Affiliates, including, but not limited to, any distribution of a Onionskin Service, related data or derivative works based thereon; (xiv) create a database in any form whatsoever from the Onionskin Service; (xv) associate the Onionskin Service or its content to another website by employing any technology, including, but not limited to, hyper linking and framing; (xvi) use automated systems, software or processes to extract or compile data from the Onionskin Service (“data scraping”); or (xvii) use the Onionskin Service as part of Client’s intranet or other internal network.
4.7. User IDs. Rights of any User to utilize any Onionskin Service(s) cannot be shared or used by more than one individual. Client must not and will ensure that Users do not permit any other individual or entity to access (through User ID and password sharing or otherwise) the Onionskin Service or Client-Software. Client may on a permanent basis transfer a User’s access right purchased by Client to another User without incurring additional Subscription Fee charges (but subject to payment of an installation fee); provided that Client submits a transfer request to and obtains a new User ID from Onionskin and the original User is no longer a User and is not permitted access to the Onionskin Service.
4.8. Feedback. Client is not required to provide Onionskin any feedback, comments or suggestions about the Onionskin Service or any of Onionskin’s technologies, products, or services (“Feedback”). However, if Client provides Feedback, Client agrees that even if it is designated confidential, the Feedback is not confidential and Onionskin is free to use, disclose, reproduce, license or otherwise distribute the Feedback without any obligations or restrictions of any kind, including intellectual property rights.
5.Client Data and Client Materials.
5.1. Client reserves all title and ownership of the Client Data. Onionskin will take reasonable security measures with respect to the storage and transmission of Client Data. Upon Client’s reasonable request, Onionskin will provide Client with Onionskin’s then-current security Documentation made generally available to customers of the relevant Onionskin Service. Onionskin shall promptly notify Client after confirming any actual or reasonably suspected information security breaches affecting the security of the Client Data.
5.2. Client hereby grants Onionskin the right to use the Client Data for the purposes of providing the Onionskin Service(s) pursuant to the Agreement. If Client furnishes to Onionskin any content, materials or other intellectual property (including graphics, logos, trademarks, etc.) other than Client Data (collectively “Client Materials”) Onionskin may use the Client Materials in connection with the provision of the Onionskin Service(s) under the Agreement. In addition to the foregoing, Onionskin may (i) collect anonymized, de-identified information relating to use of the Onionskin Service(s) (including usage data) in order to improve Onionskin’s products and services and for other reasonable internal uses and (ii) aggregate such anonymized, deidentified information with anonymous, de-identified information of its other clients for purposes of creating and distributing case studies or industry reports as part of its products and services, provided that, in each case: (a) the information does not, and could not reasonably be used to, relate back to or identify Client; and (b) Onionskin does not sell, resell or make other commercial use of such information (other than on an aggregated basis under the foregoing (ii)).
5.3. Client agrees that Onionskin and its affiliated companies may reference Client as a Onionskin customer (including using Client’s name and logo), including on Onionskin’s and its affiliated companies’ website. Onionskin will comply with Client’s reasonable instructions that are provided to Onionskin related to such use of name and logo.
5.4. Client is responsible for providing sufficient bandwidth and network connectivity to ensure all Users can access and use the Onionskin Service. The technical requirements set forth in this Section are subject to change upon notice. Client is responsible for ensuring its firewalls permit access to the Onionskin-owned URLS/IP Addresses. To ensure Client receives optimal performance, Client should use the Onionskin Service on a hardware and software system that matches or exceeds the highest specifications recommended by Onionskin, such details being available on request. Suitable configuration of software and hardware will depend on individual circumstances. System performance may be adversely affected by unsuitable software or hardware. Client is responsible for determining the security configurations of its systems (e.g. password construction rules and expiration intervals). Client is responsible for setting up and ensuring the confidentiality of User accounts and passwords assigned to them for use with the Onionskin Service. Client is responsible for promptly notifying Onionskin after confirming any actual or reasonably suspected information security breaches affecting the security of the Onionskin Service or Client-Software, of which it becomes aware, including without limitation compromised User accounts. Client is responsible for periodically reviewing its security configurations and access rights to determine if they are appropriate for its needs. Client is responsible for defining its authorized approvers, documentation and validation requirements for changes to its use and access to the Onionskin Service.
6.Pricing and Payment.
6.1. Fees. In consideration for the provision of the applicable Onionskin Service(s) and Professional Services, as applicable, Client will pay the amounts set forth in the Order in accordance with the terms set forth in this Section. All Subscription Fees are to be paid annually in advance. Except as specifically provided to the contrary in the Agreement, in the event of the cancellation, completion, expiration or termination of the Agreement, all monies paid or due or owing to Onionskin by Client shall be deemed nonrefundable. Any reduction in the quantity of any purchase made in an Order must be agreed in writing by the Parties at least thirty (30) days in advance of the commencement of the next Renewal Term, and any such reduction shall take effect as of the commencement of the next Renewal Term. If there is no written agreement to reduce the quantity of any purchase in an Order by such time, the Agreement will automatically renew for the same quantity for the preceding Initial or Renewal Terms, as applicable. Client will be responsible for all travel, accommodation and meal expenses incurred in connection with any onsite training or instruction or attendance at board meetings at the request of Client.
6.2. Invoices and Payment. Onionskin will issue an invoice to Client for the Initial Term’s Subscription Fee for the first year and any other fees on or about the date the Order is executed. For each year of the Term thereafter, Onionskin will invoice Client for Subscription Fees approximately thirty (30) days prior to the anniversary of the applicable Effective Date. Client will pay all invoices within thirty (30) days of the date of invoice. All amounts payable to Onionskin hereunder are payable in full in United States dollars (unless otherwise indicated in the Order) without deduction or set off. By providing a payment method, Client expressly authorizes Onionskin to charge said payment method at regular intervals subject to Client’s particular Subscription Fees. If Client elects to pay by credit card by providing credit card information to Onionskin, Client authorizes Onionskin to charge such credit card periodically for all fees due during the Term and Client shall ensure that the credit card information shall remain valid and updated during the Term. If Client subscribes to a Onionskin Service that includes a free trial period, Onionskin will charge Client’s method of payment for Client’s first Subscription Fee upon the expiration date of the applicable free trial period. If Client has a balance due, Client agrees that Onionskin may charge such unpaid fees to Client’s payment method or otherwise bill Client for such unpaid fees.
6.3. Late Payments. For any amount not paid when due, Onionskin may charge a 1.5% per month finance charge or, if lower, the maximum amount allowed by law. Client will reimburse Onionskin for its costs incurred (including reasonable attorney’s fees) in the collection of Client's past due amounts. If any fees owing by Client are thirty (30) days or more overdue, Onionskin may, without limiting its other rights and remedies, suspend access to the Onionskin Service(s) and/or Professional Services until such amounts are paid in full, provided Onionskin has given Client at least ten (10) days’ prior notice that its account is overdue.
6.4. Taxes. Client is responsible for payment of all applicable value-added, sales, use, license and other transaction-based taxes (such as gross receipts or excise taxes), withholding taxes, and all applicable export and import fees, customs duties, and similar charges (other than taxes based on Onionskin's net income) which are levied or imposed by reason of the transactions contemplated by this Agreement. In the event that any withholding taxes are payable under any applicable law in respect of any payment due to Onionskin under this Agreement, Client shall gross up such payment such that the balance payable to the Onionskin after deduction of the applicable withholding taxes shall be equivalent to the original amount due to Onionskin. Provided that in the event any avoidance of double taxation treaty is applicable to such payments, Onionskin and Client shall cooperate to obtain the full benefit of such treaty.
7.Warranties and Disclaimers.
7.1. Software and Services. During the Term, Onionskin represents and warrants that the applicable Onionskin Service and Client-Software will materially conform to the applicable Documentation. The warranty will not apply: (i) if the applicable Onionskin Service or Client-Software is not used in accordance with this Documentation; or (ii) if the defect is caused by Client Data, Client Materials or any third party services, content, products or modification or customization to such Onionskin Service or Client-Software.
7.2. Remedy for Breach of Warranty. If notified in writing of a valid warranty claim under Section 7.1, Onionskin will, at its option, (i) correct the non-conforming Onionskin Service or Client-Software so that it materially complies with the Documentation; (ii) provide a replacement with substantially equivalent functionality; or (iii) terminate the Agreement and refund a pro-rata portion of the prepaid Subscription Fee based on the number of months remaining in the Initial Term or Renewal Term as of the date that Client provided written notice of the warranty claim under Section 7.1. This Section states Onionskin's entire liability and Client’s sole and exclusive remedy for breach of warranty under Section 7.1.
7.3. Viruses. Onionskin will take reasonable precautions to protect against any person acting by, under or through Onionskin from introducing any software virus, worm, “back door,” “Trojan Horse” or similar harmful code into the Client-Software provided hereunder.
7.4. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ONIONSKIN DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS WHETHER EXPRESS, IMPLIED OR STATUTORY. THE WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS DISCLAIMED IN SECTION 7.4(A) SHALL INCLUDE (WITHOUT LIMITATION) ANY WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.ONIONSKIN MAKES NO WARRANTY, UNDERTAKING, REPRESENTATION, CONDITION OR OTHER AGREEMENT THAT THE ONIONSKIN SERVICE, PROFESSIONAL SERVICES, CLIENT-SOFTWARE, OR ANY INFORMATION OR DATA ACCESSED OR STORED THEREIN WILL MEET CLIENT’S REQUIREMENTS OR BE ACCURATE, COMPLETE, ERROR-FREE, RELIABLE, OR AVAILABLE.
8.Indemnification. Onionskin will indemnify Client against any bona fide third party claim that the grant of a right to, or the access and use by, Client and its Users of the Client-Software or any Onionskin Service (or any Deliverables if applicable) in accordance with the Agreement infringes a validly existing Australian trademark, copyright, patent, or other proprietary rights, and pay any final judgement awarded or Onionskin-negotiated settlement. Onionskin’s obligations under this Section are conditioned upon Client providing Onionskin (i) prompt written notice of any claim; (ii) sole and exclusive control over the defense and settlement of the claim; and (iii) such cooperation as Onionskin may reasonably request with respect to the defense or settlement of such claim. Onionskin will defend any claim with counsel of its own choosing and settle such claim as Onionskin deems appropriate. Client may participate in the defense with counsel of its own choosing and at its own cost and expense. Client will not admit liability, take any position adverse or contrary to Onionskin, or otherwise attempt to settle any claim or action without the express written consent of Onionskin. If, in Onionskin’s sole opinion, an infringement claim may have validity, then Onionskin may modify the Client-Software, Deliverables or Onionskin Service to make it non-infringing, procure any necessary license, or replace the affected item with one that is reasonably equivalent in function and performance. If Onionskin determines in its sole opinion that none of these alternatives are reasonably available, then Onionskin may terminate the Agreement, Client will discontinue using the allegedly infringing Client-Software, Deliverables, or Onionskin Service and Onionskin will issue Client a pro-rata refund of any prepaid Subscription Fee for such Client-Software, Deliverables or Onionskin Service based on the number of months remaining in the then-current Initial Term or Renewal Term. Onionskin has no obligation under this Section for and Client will indemnify Onionskin against, any third-party claim arising from: (i) Client Data or Onionskin’s compliance with Client’s or its representatives’ designs, specifications, instructions, or technical information; (ii) modifications to the Client-Software, Deliverables or Onionskin Service not made by Onionskin; (iii) Client's use of the Client-Software, Deliverables or Onionskin Service that is non-compliant with the Documentation; (iv) use of the Client-Software, Deliverables or Onionskin Service in any manner that is not authorized or is not permitted by the Agreement; (v) Client use or combination of the ClientSoftware, Deliverables or any Onionskin Service with any other software, hardware, or services that are not provided by Onionskin; or (vi) Client’s failure to implement changes recommended by Onionskin if the infringement would have been avoided by the implementation of the change. This Section states Onionskin’s entire liability and Client’s sole and exclusive remedy for claims of infringement.
9.DISCLAIMER OF CERTAIN DAMAGES.
9.1. SUBJECT TO SECTION 10.4: IN NO EVENT WILL ONIONSKIN BE LIABLE OR RESPONSIBLE TO CLIENT FOR:(I) ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES; OR (II) LOSS OF PROFITS, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, OR USE; PROPERTY DAMAGE; OR BUSINESS INTERRUPTION, IN EACH CASE ARISING OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT, ANY ONIONSKIN SERVICE, PROFESSIONAL SERVICES, OR CLIENT-SOFTWARE (WHETHER CAUSED BY BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR BREACH OF STATUTORY DUTY OR ARISING IN ANY OTHER WAY).
9.2. SUBJECT TO SECTION 10.4, THE FOREGOING DISCLAIMERS WILL APPLY EVEN IF: (I) ONIONSKIN HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES; (II) THE LIMITED REMEDIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, AND (III) REGARDLESS OF IF THE LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE.
10.LIMITATIONS ON LIABILITY.
10.1. SUBJECT TO SECTION 10.4, IN NO EVENT WILL THE AGGREGATE LIABILITY OF ONIONSKIN (TO THE EXTENT NOT DISCLAIMED UNDER SECTION 9) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT (WHETHER CAUSED BY BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY OR ARISING IN ANY OTHER WAY)) EXCEED THE TOTAL FEES PAID OR PAYABLE TO ONIONSKIN FROM CLIENT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE TIME AT WHICH THE LOSS, COST, CLAIM OR DAMAGES AROSE. 10.2. SUBJECT TO SECTION 10.4, THE EXISTENCE OF MULTIPLE CLAIMS UNDER OR RELATED TO THE AGREEMENT OR ANY ORDERS, THE ONIONSKIN SERVICE, PROFESSIONAL SERVICES, OR THE CLIENT-SOFTWARE WILL NOT ENLARGE OR EXTEND THE LIMITATION ON MONEY DAMAGES.
10.3. WITHOUT LIMITING SECTIONS 10.1 AND 10.2 (BUT SUBJECT TO SECTION 10.4), IN NO EVENT WILL ONIONSKIN BE LIABLE FOR LOSS, CORRUPTION OR COMPROMISE OF THE CONFIDENTIALITY OF CLIENT DATA, UNLESS THE LOSS, CORRUPTION OR COMPROMISE IS DUE SOLELY TO ONIONSKIN’S INTENTIONAL MISCONDUCT. 10.4. Nothing in the Agreement excludes the liability of either Party: (a) for death or personal injury caused by that Party's negligence; or (b) for fraud or fraudulent misrepresentation; or (c) for any other liabilities that cannot be excluded by law.
10.5. No right of action and other entitlements arising from or pertaining to the Onionskin Service(s) or Professional Services may be brought by Client more than one (1) year after the date on which Client has become aware of or could have become aware of such right and entitlement.
11.Termination
Either Party may terminate the Agreement if the other Party materially breaches such Agreement and fails to cure the breach (if the breach is curable) within thirty (30) days after receiving the non-breaching Party’s written notice specifying the breach. Notwithstanding the foregoing, Onionskin may terminate the Agreement immediately upon providing written notice to Client if Client breaches Section 12 (Confidentiality) or Section 4 (Access Right; Restrictions), and Client may terminate the Agreement upon providing written notice to Onionskin if Onionskin breaches Section 12 (Confidentiality). Either Party may terminate the Agreement immediately (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party’s debts; (ii) upon the other Party making an assignment for the benefit of creditors; or (iii) upon the other Party’s dissolution or ceasing to do business. Upon termination of the Agreement, all rights granted to Client pursuant to the Agreement (as the case may be) will terminate, Client will immediately cease all access and use of the applicable Onionskin Service(s) and Client-Software, and pay all unpaid fees. If Client terminates this Agreement due to Onionskin’s breach of the Agreement, then to the extent Client has paid fees to Onionskin that relate, on a pro-rated basis, to any portion of the Term that is after the date of termination, Onionskin will pay to Client a pro-rated refund of such fees. If requested by Client after termination of the Agreement, Onionskin will make Client Data available for the Client to export or download, as provided in the Documentation, for a period not to exceed thirty (30) days from the date of termination. After such period (or if Client does not make such a request within ten (10) days of the date of termination), Onionskin will be under no obligation to hold the Client Data and will delete all Client Data (including backups of Client Data) no later than one hundred twenty (120) days from the termination date unless Onionskin has specifically agreed otherwise in writing. After deletion is complete, Onionskin will provide a certificate confirmation deletion of the Client Data if so requested by Client. Sections 1, 4.4, 4.5, 5.2, 5.4, 6, 7.4, 912, the ownership language in 13.6 (but not the license granted to the Client), 14.4, and 15-16 will survive termination of the Agreement for any reason.
12.Confidentiality
Client will retain in confidence the terms and pricing of the Agreement and all other non-public information, technology, and materials (including the Onionskin Service and Client-Software) provided by or on behalf of Onionskin during the Term (Onionskin’s “Confidential Information”), and Onionskin shall retain in confidence the Client Data (Client’s “Confidential Information”). Each Party will not disclose the Confidential Information of the other to any third party except for those provided under the Agreement or use it for any purpose other than to carry out the activities contemplated under the Agreement. Each Party may only disclose the other’s Confidential Information to its employees or third parties who assist with the operation of the Agreement (e.g., Users, contract developers, service providers, etc.), who have a need to know in connection with the Agreement and who have agreed to obligations of confidentiality that are no less restrictive than the obligations in the Agreement. Each Party will take reasonable steps, and in no event will those steps be any less secure than the steps it uses to protect its own similar information, to ensure that the other’s Confidential Information is protected. Each Party is responsible for the actions or inactions of its employees and advisors with respect to use and disclosure of the other’s Confidential Information. The restrictions set forth in this paragraph will not apply to any information that:
(a) was known by the receiving Party without obligation of confidentiality prior to disclosure by the disclosing Party;
(b) was in or entered the public domain through no fault of the receiving Party;
(c) is disclosed to the receiving Party by a third party legally entitled to make the disclosure without violation of any obligation of confidentiality; or ( d) is independently developed by the receiving Party without reference to any Confidential Information. To the extent that Confidential Information is required by applicable law or regulations to be disclosed, a receiving Party may disclose such information after providing to the disclosing Party, to the extent permitted by law, prompt notification of such request for disclosure for the purpose of challenging such request. In the event that Onionskin is required by law to disclose any portion of the Client Data, or is so directed by Client, Client shall pay any reasonable fees associated with complying with such disclosure. The Parties agree that any violation or threatened violation of this Section will cause irreparable injury to the disclosing Party for which money damages would be an insufficient remedy, therefore the disclosing Party will be entitled to seek injunctive relief, without the necessity of posting bond or proving actual damages, in addition to other appropriate legal remedies. 13.Professional Services
13.1. Scope of Applicability. The provisions of this Section shall apply solely to Professional Services, where such Professional Services are included in an Order. This Section does not limit the operation of any other Sections of the Agreement, but in the event of any direct conflict between this Section and other Sections with respect to the Professional Services, this Section shall control. Notwithstanding Section 3, for purposes of any SOW, the Term of such SOW shall be the Professional Services Term.
13.2. Provision of Services. During the Professional Services Term (and subject to Section 13.5), Onionskin shall use commercially reasonable efforts to perform the Professional Services, and Onionskin represents and warrants that all Professional Services shall be provided in a professional and workmanlike manner.
13.3. Remedy. If notified in writing of any claim for Onionskin’s breach of Section 13.2, Onionskin will, at its option, (i) reperform the Professional Services so that they comply with Section 13.2; or (ii) terminate the portion of the affected Order attributable to such Professional Services and refund the fees attributable for such Professional Services. This Section states Onionskin's entire liability and Client’s sole and exclusive remedy for Onionskin’s breach of Section 13.2.
13.4. Suitability. Onionskin shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Order. Onionskin may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
13.5. Client Responsibilities. Client shall make available in a timely manner at no charge to Onionskin all technical data, Client Data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Client required by Onionskin in each case for the performance of the Professional Services, as well as anything specified in the applicable Order. Client shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Client. Client shall provide, at no charge to Onionskin, reasonable cooperation as Onionskin requires to perform the Professional Services.
13.6. Ownership. Ownership of all work product, developments, inventions, technology or materials related to any Professional Services (the “Deliverables”) shall be solely owned by Onionskin (except with respect to Client Data, which shall remain Client’s sole property). Solely during the applicable Term and conditioned upon Client’s compliance with all the terms of the Agreement, Onionskin grants to Client a limited, nonexclusive, non-transferable, and non-sublicensable right to make use of the Deliverables.
13.7. Modifications and Change Orders. For the avoidance of doubt, modifications to the scope of any Professional Services shall become effective only when a document incorporating the relevant written change request is executed by authorized representatives of both Parties.
14.Content Services
14.1. Scope of Applicability. The provisions of this Section shall apply solely to Content Services, where such Content Services are part of an Order. This Section does not limit the operation of any other Sections of the Agreement, but in the event of any direct conflict between this Section and other Sections with respect to the Content Services, this Section shall control. For the avoidance of doubt, the Content Services and any components, data, or content therein constitute a part of the Onionskin Service under this Agreement.
14.2. Enhancements or Revisions to Content. Onionskin reserves the right to alter or modify the Content Services and any portions or configurations thereof from time to time. Such alterations and/or modifications may include, without limitation, addition or withdrawal of features and/or data or changes in instructions and/or documentation.
14.3. Specific Restrictions. Without limiting anything else in the Agreement, Client shall not (and shall ensure that each User shall not) perform any of the following acts, except as otherwise expressly permitted by the Agreement or with the express written permission of Onionskin:(i) license, sublicense, transfer, sell, resell, publish, reproduce, and/or otherwise redistribute any data within the Content Service or any components thereof in any manner, including, but not limited to, via or as part of any internet site;(ii) provide access to the Content Service or any portion thereof to any person, firm or entity other than a User, including, but not limited to, any Affiliate not expressly identified in the Agreement;(iii) use and access the Content Services other than as permitted under this Agreement; or(iv) copy, reproduce, modify, distribute, create derivative works of, publicly display, publicly perform, reverse engineer, decompile, or disassemble the Content Services or any portions thereof.
14.4. Disclaimer.
ONIONSKIN AND ANY THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS, CONDITIONS OR WARRANTIES REGARDING THE COMPLETENESS, VERACITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ACCURACY OF THE CONTENT SERVICES OR ANY COMPONENT THEREOF, OR FOR ANY DELAYS, INTERRUPTIONS OR OMISSIONS. THE CONTENT SERVICES AND ANY COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CLIENT’S USE OF THE CONTENT SERVICES IS AT CLIENT’S OWN RISK. Onionskin AND ANY THIRD-PARTY PROVIDERS ARE NOT LIABLE FOR THE DATA, DATA STRUCTURE, METADATA, METRICS, CHARTS, GRAPHS, LITERATURE, OR OTHER CONTENT IN ANY FORM AND ANY DERIVATIVES THEREOF, (INCLUDING, WHERE APPLICABLE, ALL UPDATES TO THE FOREGOING) IN EACH CASE INCLUDED IN THE CONTENT SERVICES OR ANY DECISION OR CONSEQUENCE BASED ON USE OF THE FOREGOING.
14.5. Indemnity Client will indemnify Onionskin and any Third-Party Providers for any claim, suit, action or proceeding by a third party arising directly from (a) any negligent or more culpable act or omission, willful misconduct or fraud of Client in connection with its use of the Content Services; (b) the infringement or misappropriation of any trademark, copyright, patent, or other proprietary rights of a third party by Client; (c) any failure by Client to materially comply with any applicable law in connection with its use of the Content Services; or (d) Client’s failure to comply with any of the terms of this Agreement in connection with its use of the Content Services.
15.Beta and Trial Services
15.1 Beta Services. From time to time, Onionskin may make Beta Services available to Client at no charge. Client may choose to try such Beta Services in Client’s sole discretion. Unless otherwise determined by Onionskin, no Order is specifically required to enable Client’s use of Beta Services. Beta Services are intended for evaluation purposes and not for production use. Beta Services are not supported and may be subject to supplemental terms in addition to those set out in this Agreement, which will be presented to Client. Beta Services are not considered part of the “Onionskin Service”, “Client-Software” “Professional Services”, or similar terms under this Agreement; however, all restrictions and Client commitments under this Agreement shall apply to Client 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. Onionskin may discontinue Beta Services at any time in Onionskin’s sole discretion and may never make Beta Services generally available. Onionskin will have no liability for any harm or damage arising out of or in connection with a Beta Service.
15.2 Trial Services. If Client registers to use any Trial Service, Onionskin will make such Trial Service available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client has registered to use the applicable Trial Service(s); (b) the start date of any paid subscription to the Onionskin Service or Professional Service offered as a Trial Service; or (c) termination of the trial by Onionskin in Onionskin’s sole discretion. Additional trial terms and conditions may appear on Onionskin’s registration page or documentation for any Trial Services. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Client should review the applicable Documentation during the trial period so that Client is familiar with the features and functions of the Onionskin Service(s) under applicable service plans before entering into a subscription. ANY CLIENT DATA ENTERED INTO A TRIAL SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A TRIAL SERVICE BY OR FOR CLIENT OR ANY CLIENT USERS, DURING ANY TRIAL SERVICE WILL BE PERMANENTLY LOST UNLESS CLIENT EITHER (A) SUBSCRIBES TO THE SAME ONIONSKIN SERVICE(S) AND/OR PROFESSIONAL SERVICE(S) AS COVERED BY THE TRIAL OR (B) EXPORTS SUCH CLIENT DATA BEFORE THE END OF THE TRIAL PERIOD.
15.3 Disclaimer.
NOTWITHSTANDING ANYTHING TO THE CONTRARY UNDER SECTION 7 (WARRANTIES AND DISCLAIMER), BETA SERVICES AND TRIAL SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY, REPRESENTATION, GUARANTEE, CONDITION OR TERM OF ANY KIND, WHETHER EXPRESS, IMPLIED OR IMPOSED BY LAW. Onionskin SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA OR TRIAL SERVICES. IN THE EVENT SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, ONIONSKIN’S LIABILITY WITH RESPECT TO BETA OR TRIAL SERVICES SHALL NOT EXCEED $500.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10 (LIMITATIONS ON LIABILITY), CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ONIONSKIN AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE BETA OR TRIAL SERVICES, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
16.Miscellaneous
16.1 Conflict. If there is an inconsistency between any of the provisions in the Agreement and any Order, the provisions in the Order shall control.
16.2 Variations. Onionskin may change, update, add or remove provisions of these Terms and Conditions at any time by posting the updated Terms and Conditions on the Onionskin website(s) and by providing a notice on the website(s). Except as otherwise required by law, the updated Terms and Conditions are effective as of the day of posting, unless Client is under paid-subscription services with Onionskin. If Client is under paid-subscription services with Onionskin then any material changes will become effective only after Client’s then-current Term expires or terminates. If Client does not agree with such changes and Client communicate this to Onionskin in accordance with the notification provisions set forth herein, the Term will not automatically renew (even if Client previously agreed to automatic renewal). Onionskin will ask for Client’s express consent to the updated Terms and Conditions where legally required to do so and any notice to Client will explain how Client can accept or reject the changes. If Client does not agree with any of the updated Terms and Conditions, Client must not renew or stop using the Onionskin Service(s). Additionally, Onionskin may make changes to the Onionskin Service(s) at any time, provided that Onionskin will not degrade the quality or functionality of the Onionskin Service(s). Onionskin also reserve the right to discontinue the Services, or any component of it, provided that any discontinuance will only become effective solely upon termination of the then-current paid term. Onionskin will not be liable to Client or any third party should Onionskin exercise our right to modify or discontinue the Onionskin Service(s).
16.3 Waiver. All waivers under the Agreement must be in writing to be effective. No waiver by a Party of any default or breach will be deemed a waiver of any subsequent default or breach. No failure or delay by a Party to exercise any right or remedy provided under the Agreement will operate as a waiver or prevent the exercise of any such right or remedy of such Party, or the enforcement of any obligation of the other Party, under the Agreement. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 Severance. If any provision (or part of a provision) of the Agreement is found to be invalid or unenforceable by any court of competent jurisdiction, the provision will be enforced to the fullest extent permissible to effect the Parties’ intent, and the invalidity or unenforceability will not operate to invalidate the remaining provisions of the Agreement. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
16.5 Interpretation of Agreement. The Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either Party.
16.6 Governing Law and Dispute Resolution. The interpretation of this Agreement and all matters related to this Agreement will be construed in accordance with the laws of Australia, or the State of New South Wales, Australia. The Parties further agree that the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. In any legal action relating to this Agreement, Client agrees to the exercise of jurisdiction over it by a state or federal court in Australia. Client agrees that, if it brings any such action, it shall do so in the count in Australia.
16.7 Bench Trial. The Parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with regard to any dispute arising out of this Agreement.
16.8 Notices. Any notices required or permitted to be given hereunder by either Party to the other will be given in writing (i) by personal delivery, (ii) by bonded courier or a nationally-recognized overnight delivery company, (iii) by prepaid first class, registered or certified mail, postage prepaid, in each case addressed to the other Party at the address set forth in the Order (or to such other address as the other Party may request in writing by notice given pursuant to this Section) or (iv) by email. Notices will be deemed received: (a) if personally delivered, the same day; (b) if sent by courier or overnight delivery company, on the second working day after the day it was sent; (c) if sent by mail, five (5) working days following posting; or (d) if sent by email, the date of delivery. Client hereby consents to receive communications from Onionskin in an electronic form. Where Onionskin requires that Client provides an e-mail address; Client is responsible for providing Client’s most current e-mail address. In the event that the last e-mail address Client provided to Onionskin is not valid, or if for any reason Onionskin is not capable of delivering to Client any notices required/ permitted by the Agreement, Onionskin’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Evidence of successful transmission shall be retained.
16.9 Entire Agreement. The Agreement, together with the applicable Product Terms identified athttps://Onionskin.com/product-terms and all legal documents herein incorporated by reference, contain the entire understanding and agreement between Onionskin and Client with respect to the subject matter of the Agreement, and supersedes all other prior and contemporaneous proposals, representations, agreements, understandings, and commitments between Onionskin and Client with respect to the subject matter of the Agreement.The Agreement supersedes any conflicting terms in Client's purchase order or other ordering document. Any terms of trade stated or referenced in Client's purchase order, or any other terms to which Onionskin has not specifically agreed in a writing signed by an authorized representative of Onionskin, are not binding on Onionskin.Each of the Parties acknowledges and agrees that in entering into the Agreement, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a Party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
16.10 Privacy. Each Party will comply, to the extent applicable, with data protection laws, including but not limited to Australian privacy laws, and any implementation thereof in national law. To use the Onionskin Service(s), Onionskin’s Data Protection Addendum is also available athttps://Onionskin.com/data-processing-addendum, the terms of which as of the Effective Date are hereby incorporated into this Agreement by reference. Client may separately elect to execute such Data Protection Addendum provided that Client returns a copy of such Data Protection Addendum to Onionskin at support@Onionskin.com.
16.11 No Offer of Securities. Neither Onionskin nor its Third-Party Providers are investment advisors and nothing contained in the Content Services will be construed as to make a representation or warranty, express or implied, regarding the accuracy or completeness of the data and information contained in the applicable product or the advisability to buy, sell, subscribe for, exchange or redeem a particular investment. The service provided under this Agreement and all content provided in conjunction with them are for informational purposes only and do not constitute, and should not be construed as a solicitation or offering of any investment or other transaction, an identification or offering of any securities for purchase, a recommendation to acquire or dispose of any investment, or the provision of any financial, tax, legal or other advice of any nature whatsoever. Client understands and agrees that any decisions it makes on the basis of any information provided under this Agreement are made solely at its own risk and Onionskin and the Third-Party Providers have no responsibility or liability arising from such decisions. Onionskin and/or the Third-Party Providers do not (i) serve as an agent for Client, Users, or any other person, (ii) market securities to investors, (iii) participate in negotiations between a Client, Users or any investor, (iv) handle any monies or securities in transactions between investors and Client or Users (or other third parties), or (v) assist Client, Users, or investors with the completion of any transactions between them (such as transaction documentation or paid referrals).
16.12 Links to Third-Party Sites. Onionskin Service(s) and/or Client-Software may contain links to, or allow Client or its Users to connect and use, certain third-party products, services, or software (“Third-Party Services”, and each, a “Third-Party Service”) in conjunction with Client’s use of the Onionskin Service. To take advantage of these features, Users may be required to sign up or log into such Third-Party Service or their respective websites or applications. Client acknowledges that any use of such Third-Party Service is governed solely by the terms and conditions and privacy policy of such Third-Party Service, and that Onionskin does not endorse, is not liable for, and makes no representations as to any Third-Party Service, its content, or the manner in which such Third-Party Service uses, stores or processes any data. Certain features of certain Onionskin Service(s) and/or Client-Software may depend on the availability of these ThirdParty Services and the features and functionality they make available to us. Onionskin does not control Third-Party Service features and functionality, which may change without notice to Onionskin or Client. If any ThirdParty Service stops providing access to some or all of the features or functionality currently or historically available to Onionskin, or stops providing access to such features and functionality on reasonable terms, as determined by Onionskin in its sole discretion, Onionskin may stop providing access to certain features and functionality of the Onionskin Service(s) and/or Client-Software. Onionskin will not be liable to Client for any refunds or any damage or loss arising from or in connection with any such change made by a Third-Party Service or any resulting change to the Onionskin Service and/or Client-Software. Client and its User irrevocably waive any claims against Onionskin with respect to any Third-Party Services.
16.13 Force Majeure. Neither Party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including: acts of God or nature; labor disputes; sovereign acts of any federal, state or foreign governments; network and/or computer failure or shortage of supplied materials (“Force Majeure Event”); provided that the affected Party makes a reasonable attempt to remove the impact of the Force Majeure Event as soon as reasonably possible. Either Party will have the right to terminate the Agreement upon written notice if a Force Majeure Event continues to impact performance of the other Party for more than thirty (30) consecutive days.
16.14 Export. Neither Party shall export, directly or indirectly, any technical data acquired from the other Party under this Agreement (or any products, including software, incorporating any such data) to any country or person in breach of any applicable laws or regulations regulating export (“Export Control Laws”). Client shall ensure that its Users do not access any Onionskin Service (or use the Client-Software or any Deliverables) in breach of Export Control Laws.
16.15 Anti-Bribery. Each Party shall comply with all applicable anti-bribery legislation in connection with the operation of this Agreement. Each Party agrees that it has not received or been offered any illegal bribe, kickback payment, gift, or thing of value from any of the other Party’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If a Party learns of any breach of this Section related to this Agreement, it will use reasonable efforts to promptly notify the other Party’s legal department.
16.16 No Assignment or Delegation. Client may not (i) assign the Agreement or rights to the Onionskin Service, Professional Services or Client-Software, in whole or in part, or (ii) delegate its duties, or have another assume its responsibilities or liabilities, under the Agreement, to any third party without the prior written consent of Onionskin. Any attempted assignment in contravention of this provision will be null and void. The Agreement will be binding on all permitted assignees and successors in interest. Onionskin may freely assign or subcontract its rights or obligations under this Agreement.
16.17 Independent Contractor. Onionskin is an independent contractor. Nothing in the Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties and neither Party will have the power to act in the name or on behalf of, or otherwise bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.18 Third-party Beneficiaries. Onionskin’s Third-Party Providers are third-party beneficiaries under this Agreement and may enforce the terms and conditions of this Agreement against Client as it relates to such Third-Party Provider, but such Third-Party Providers will not be liable to Client for any direct or indirect damages with respect to the Content Services or any matters arising under this Agreement with respect to the Content Services. Other than as expressly set out in this Section 16.17, this Agreement does not and is not intended to confer rights on anyone other than the two parties to the Agreement.
16.19 Rights and Remedies. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.20 Counterparts. The Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which taken together will constitute one signed agreement between the Parties. Signatures may be transmitted by facsimile or electronic mail in PDF or other similar format and will be deemed original. The signatories to the Agreement hereby represent and warrant that they have all necessary authority to enter into and bind their respective Party to the Agreement.
16.21 English Language Controls. The original and controlling version of this Agreement shall be the version using the English Language. All translations of this Agreement into other languages shall be for the convenience of the Parties only, and shall not control the meaning or application of this Agreement. All notices and other communications required or permitted by this Agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely upon the English language version thereof.
