Subscription Agreement for all types of Software products

PLEASE READ THIS SUBSCRIPTION AGREEMENT FOR ALL TYPES OF SOFTWARE PRODUCTS AND ADDITIONAL DOCUMENTATION CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” OR PAYMENT DISPL’S INVOICE, CUSTOMER AGREES TO THIS SUBSCRIPTION AGREEMENT FOR ALL TYPES OF SOFTWARE PRODUCTS AND ADDITIONAL DOCUMENTATION.

This Subscription Agreement is a part of the Additional Documents:

– DISPL website usage terms: https://displ.com/legal/terms-of-use;

– DISPL Privacy policy (https://displ.com/privacy-policy);

– DISPL Eхport Compliance Policy (https://displ.com/legal/export-compliance-policy);

– DISPL Terms and Conditions of Sale of Goods (https://displ.com/legal/tc-of-sale);

– DISPL End-User License Agreement (https://displ.com/legal/end-user-license-agreement);

– Security Requirements (https://displ.com/legal/security-requirements);

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and together with the Additional Documents shall  constitute a binding agreement (this “Agreement”) by and between DISPLAYFORCE GLOBAL LIMITED, a company governed and construed under the laws of the Republic of Cyprus, having its registered office at 1 Iapetou Str, 4101 Agios Athanasios, Limassol, Cyprus, registered in the register of the Ministry of Energy, Commerce and Industry Department of Registrar of Companies and Intellectual Property under the number HE433772  (“DISPL”, “we” or “us”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”, “you”).

This Agreement is effective as of the date Customer clicks “Accepted and Agreed To”  or paid DISPL’s invoice (the “Effective Date”). Customer’s use of and DISPL’s provision of DISPL’s SaaS (as defined below in Section 1.8) are governed by this Agreement.

Unless specifically stated in the text of this Agreement for whom the rules apply, the Additional documents referred to in this Agreement apply by default to all Customers.

“You” means the entity you represent in accepting this Agreement or representative of the partnership, or if that does not apply, you individually as entrepreneur. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent.

If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you.

PLEASE NOTE THAT IF YOU SIGN UP FOR CONTRACT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS AGREEMENT, AND (C) THE WORD “YOU” IN THIS AGREEMENT WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.

1.DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1.      “Customer’s Clients” means any of Customer’s clients (End - Users or End - Purchaser) to whom the Customer gives access to the Software.

1.2.      “Customer Data” means all information processed or stored through the Software by Customer or on Customer’s behalf. Customer data does not include payment records, credit cards or other information Customer uses to pay DISPL, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.

1.3.      “Documentation” means DISPL's standard manual related to use of the Software, available at https://support.displayforce.ai/hc/en-us/categories/6372077139869-User-s-Manual.

1.4.      “EULA” means DISPL End - User License Agreement currently posted at https://displ.com/legal/end-user-license-agreement.

1.5.      “IP rights” means shall mean all worldwide intellectual property rights, including without limitation, patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of,  and rights to claim priority from, such rights and documentation to and source code of the software, and any modifications, adaptations, derivative works, and enhancements made thereto and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

1.6.      “Order” means an order for access to the Software, executed according to this Agreement;

1.7.      “Privacy Policy” means DISPL Privacy policy (https://displ.com/privacy-policy);

1.8.      “Software” means DISPL’s software which consist of software programs including, but not limited to “DISPL Player”, “DISPL Manager” and “DISPL Designer”, ”DISPL Audience”, “DISPL Visitors Insights” or other Right- holder`s Software, where “DISPL Manager” is designed as controller program for one or more “DISPL Player; the detailed name of the licensed product and its tariff, extensions and other description, is determined in Orders; IP rights for the Software are belonged to DISPL according to the law and (or) the related deals (agreements, contracts);

1.9.      “SLA” means DISPL’s standard service level agreement available at https://displ.com/legal/sevice-level-agreement-for-saas-products;

1.10.  “Subscription” means a part of DISPL price list which specifies your authorized scope of use for the Software, based on the Order, which may include: (a) number and type of authorized users or devices, (b) numbers of licenses, copies or instances (for software), (c) Subscription Term or (d) other restrictions or billable units;

1.11.  “Subscription Term” means your permitted subscription period for the Software, as set forth in the applicable Order and /or DISPL’s invoice;

1.12.  “Term” is defined in Section 11.1 below.

1.13.  “User” means any company or individual who uses the Software on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Customer’s Clients.

1.14.  “Website” means any of the websites on the Internet, located at https://displ.com/ or https://displayforce.ai/, all rights for their administration are held by DISPL.

2. THE SOFTWARE.

2.1.      Use of the Software. Subject to the limitations and restrictions set forth in this Agreement, during the Term, Customer may access and use the Software pursuant to the terms of this Agreement, any outstanding Order, and the EULA, including such features and functions as the Order requires.

2.2.      Service Levels. DISPL may provide the remedies listed in the SLA for any failure of the Software listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the Software, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy; provided this sentence does not restrict any Customer right to terminate this Agreement for breach where applicable. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. DISPL is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.

2.3.      Documentation: Customer may use the Documentation solely as necessary to support Users’ use of the Software.

2.4.  Software Revisions. DISPL may revise the SLA or the features and functions of the Software at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.

2.5.      Customer’s Clients. The Customer may authorize Customer’s Clients to access and use the Software in such numbers and according to such restrictions as are set forth in this Agreement, the applicable Order, and the EULA, this Agreement solely for the following purposes: granting access to the Software to the End-User. Customer shall: (a) provide complete name and contact information for each proposed Customer’s Client upon or before providing such access, and update such information as soon as it become aware of a change; and (b) require that each Customer’s Client execute the EULA and this Agreement. Customer shall make no representations or warranties regarding the Software or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of DISPL, and Customer shall not create or purport to create any obligations or liabilities for DISPL. DISPL may reject any proposed Customer’s Client for any reason that does not violate applicable law, in its sole discretion. Customer shall be jointly and severally liable to DISPL for Customer’s Client’s compliance with this Agreement, any applicable Order and the EULA. If otherwise agreed in the Order, DISPL shall have no obligation to provide support or other services, SLA remedies (if any), or other remedies to Customer’s Clients.

3. SOFTWARE FEES.

3.1.      Fees. Customer shall pay DISPL the fee set forth in each Order and/or DISPL’s invoice for each Term. When Fees in Order and DISPL's invoice discrepancies, DISPL's invoice shall prevail. DISPL will not be required to refund fees under any circumstances. DISPL’s invoices are due within 30 days of issuance. For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 0,5% per month or the highest rate permissible under applicable law.

3.2.      Taxes. Amounts due under this Agreement are payable to DISPL without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, DISPL may require that Customer submit applicable Sales Taxes to DISPL. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives DISPL a valid tax exemption certificate within 30 days of the Effective Date. DISPL’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay DISPL the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on DISPL’s net income.

4. CUSTOMER DATA & PRIVACY.

4.1.      Use of Customer Data. DISPL shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the Software; or (b) give Customer Data access to any third party, except DISPL’s subcontractors that have a need for such access to facilitate the Software and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, DISPL: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data; and (d) shall comply with Privacy Policy and relevant laws that are applicable both specifically to DISPL and generally to data processors in the jurisdictions in which DISPL does business and operates physical facilities.

4.2.      Additional Fees. Customer recognizes and agrees that DISPL may charge additional fees (without limitation) (a) for activities (if any) required by Privacy Policy and (b) for activities Customer requests to help it comply with Privacy Policy.

4.3.      Privacy Policy. Customer acknowledges DISPL’s Privacy Policy and Customer recognizes and agrees that nothing in this Agreement restricts DISPL’s right to alter such Privacy Policy.

4.4.      De-Identified Data. Notwithstanding the provisions above of this Article 4, DISPL may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a Customer’s Client, or Customer.)

4.5.      Erasure. DISPL may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting DISPL’s other rights or remedies.

4.6.      Required Disclosure. Notwithstanding the provisions above of this Article 4, DISPL may disclose Customer Data as required by applicable law or by proper legal or governmental authority. DISPL shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.7.      Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer assumes such risks. DISPL offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.8.      Data Accuracy. DISPL shall have no responsibility or liability for the accuracy of data uploaded to the Software by Customer, including without limitation Customer Data and any other data uploaded by Users or Customer’s Clients.

5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

5.1.      Your License Rights. Subject to the terms and conditions of this Agreement, DISPL grants you a non-exclusive, non-sublicensable and non-transferable, worldwide license (subject to the restrictions set forth in the Sections 5.4, 5.6, 12.8), if no other territory of use of the license is explicitly specified in DISPL's invoice, to install and use Software during the applicable license Term for your own business purposes, limited to a particular number of copies, specified in the Order, in accordance with this Agreement and EULA, your applicable scope of use, the Documentation and all Laws. This Agreement grants Company or/and End Users no title to or ownership of the licensed Software, and Company or/and End Users receives no rights to the licensed Software other than those specifically granted in Section 5.1. above or/and in EULA respectively.

5.1.1. If you purchase a license as part of a Kit (Bundle), please additionally review the terms and conditions that apply:

- for purchasing goods - https://displ.com/legal/tc-of-sale;

- for renting goods - https://displ.com/legal/displ-rental-terms-and-conditions-of-goods

- standard product warranty - https://displ.com/legal/displs-standard-product-warranty;

5.2.      Acceptable Use. Customer shall comply with this Agreement, any applicable Order, DISPL’s invoice and the EULA.

Customer shall not: (a) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software, except Customer’s Clients as specifically authorized by this Agreement; (b) provide Software passwords or other log-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public Software features or content with any third party, except Customer’s Clients as specifically authorized by this Agreement; (d) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the Software; or (e) engage in web scraping or data scraping on or related to the Software, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of the Article 5, including without limitation by Users, DISPL may suspend Customer’s access to the Software without advanced notice, in addition to such other remedies as DISPL may have.

5.3.      Special Acceptable Use for the Distributor: Subject to other provisions in the Article 5 (for clarity, only what is stated in Section 5.3 is permitted) DISPL hereby grants to the Customer, which is a Distributor a nonexclusive, worldwide license (subject to the restrictions set forth in the Sections 5.4, 5.6, 12.8) ), if no other territory of use of the license is explicitly specified in DISPL's invoice, to exploit the licensed Software as follows: (a) to distribute the licensed Software; (b) to reproduce and use the licensed Software for sales and marketing purposes and to the extent necessary to provide technical support to End-Customers as agreed with DISPL; and (c) to sublicense to End-Customers the right to reproduce and use the licensed Software under EULA. Distributor may sublicense to Sub-Distributors or Resellers the rights granted in the preceding sentence.

Special Acceptance Use for the Reseller: Subject to all of the terms and conditions of this Agreement, during the Term (for clarity, only what is stated in Section 5.3 is permitted), DISPL grants to Reseller a one-time, non-exclusive right to resell licenses or subscriptions (as applicable) directly to End-Users, for the End-User’s own use (i) within the applicable scope of use and (ii) pursuant to the EULA. All resales are subject to Reseller’s submission and DISPL’s acceptance of the applicable. Reseller’s rights under this Agreement are non-transferable and non-sublicensable. Reseller may not resell Subscriptions to Customers or third parties for further resale, redistribution, sharing or transfer. Nor may Reseller resell any Subscriptions except pursuant to Orders directly with DISPL in accordance with this Agreement (e.g., Reseller may not resell Subscriptions purchased from other DISPL resellers). For clarity, Reseller will not act as a sublicensor or provider of the Subscriptions and has no right to rebrand, reframe, operate or control the Subscriptions.

5.4.      Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute (except for permitted distribution under this Agreement), sell, sublicense (except for permitted sublicense under this Agreement), transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; incorporate the Software into Reseller’s/Distributor`s products or services or resell the Software on a bundled or OEM basis (but this does not prohibit Reseller from listing Software with Reseller or third-party products on a quote or invoice provided to Customers); (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit its use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products or use the Software to train, educate, or create Artificial Intelligence (AI), including ChatGPT or other AI Chatbots, use the Software in any AI Systems (e.g. traditional symbolic AI, Machine learning,  AI systems that can be used on a stand-alone basis or as a component of a product as well as hybrid systems or other AI techniques and approaches); (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.

5.5.      Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information. Customer shall notify DISPL immediately of any known or suspected unauthorized use of the Software or breach of its security and shall use best efforts to stop said breach.

5.6.      Compliance with Laws. In its use of the Software, Customer shall comply with all applicable laws, including without limitation Privacy Policy and DISPL Export Compliance Policy available at https://displ.com/export-compliance-policy. Company shall not permit any third party to access or use the licensed Software in, or export it to, a country subject to an EU embargo or/and restrictive measures, including the U.S. imposed restrictions.

5.7.      Customer’s Clients & Other Users; Software Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the Software, including without limitation unauthorized User conduct and any User conduct that would violate this Agreement, any applicable Order or the EULA; and (b) any use of the Software through Customer’s account, whether authorized or unauthorized.

6. IP & FEEDBACK.

6.1.      IP Rights to the Software. DISPL retains all IP Rights in and to the Software, including without limitation all software used to provide the Software and all graphics, user interfaces, logos, and trademarks reproduced through the Software. This Agreement does not grant Customer any intellectual property license or rights in or to the Software or any of its components. Customer recognizes that the Software and its components are protected by copyright and other laws.

IP Rights to the trademarks. DISPL© is the registered trademark of Displayforce Global Limited. You agree not to make any commercial use of the DISPL’s logo, trademark or brand name in any way;  register any organizations, corporations, other business units in its own name or the name of its affiliates, if the name of such organizations includes in whole or in part words such as "DISPL", "DISPLAYFORCE", register domains, websites with such words. For further information regarding the use of our Site, please refer to DISPL website usage terms (https://displ.com/legal/terms-of-use).

6.2.  Feedback. DISPL has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users give DISPL, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict DISPL’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of DISPL’s products or services.)

7.  CONFIDENTIAL INFORMATION.

‍“Confidential Information” refers to the following items DISPL discloses to Customer: (a) any document DISPL marks “Confidential”; (b) any information DISPL orally designates as “Confidential” at the time of disclosure, provided DISPL confirms such designation in writing within two (2) business days; (c) information stated in this Agreement; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by DISPL.

7.1.      Nondisclosure. Customer shall not use Confidential Information for any purpose other than use of the Software according to this Agreement and the EULA (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7.2; and (b) shall not disclose Confidential Information to any other third party without DISPL’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify DISPL of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give DISPL prompt notice of any such legal or governmental demand and reasonably cooperate with DISPL in any effort to seek a protective order or otherwise to contest such required disclosure, at DISPL’s expense.

7.2.      Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate within five (5) years after the date of disclosure; provided that such obligations related to Confidential Information constituting DISPL’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to DISPL or certify, in writing, the destruction thereof.

7.3.      Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to DISPL; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that DISPL prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)

7.4.      Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. DISPL will retain all right, title, and interest in and to all Confidential Information.

8. REPRESENTATIONS & WARRANTIES.

8.1.      From DISPL. DISPL represents and warrants that it is the right holder of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Software set forth in this Agreement and EULA without the further consent of any third party. DISPL’s representations and warranties in the preceding sentence do not apply to use of the Software in combination with hardware or software not provided by DISPL. In case of breach of the warranty above in this Section 8.1, DISPL, at its own expense, shall promptly: (a) secure for Customer the right to continue using the Software; (b) replace or modify the Software to make it noninfringing; or if such remedies are not commercially practical in DISPL’s reasonable opinion, (c) refund the fees paid for the Software for every month remaining in the then-current Term following the date after which Customer access to the Software ceases as a result of such breach of warranty. If DISPL exercises its rights pursuant to Subsection 8.1(c) above, Customer shall promptly cease all use of the Software and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and DISPL’s entire liability for breach of the warranty above in this Section 8.1.

8.2.      From Customer.

(a)      Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Software; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

(b)      Re Customer’s Clients. Customer represents and warrants that, to the best of its knowledge: (i) each Customer’s Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement and the EULA, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) Customer will accurately identify each Customer’s Client and will not provide any inaccurate information about a Customer’s Client or other User to or through the Software; and (iii) each Customer’s Client will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3.      Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SOFTWARE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) DISPL HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) DISPL DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) DISPL DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

9.  INDEMNIFICATION.

Customer shall defend, indemnify, and hold harmless DISPL and the DISPL Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Software, including without limitation: (a) claims by Customer’s Clients or other Users or by Customer's or Customer’s Clients’ employees; (b) claims related Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Software through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Software through Customer’s account, including by Customer’s Clients or other Users, harasses, defames, or defrauds a third party or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO DISPL’S NEGLIGENCE. Customer’s obligations set forth in this Article 9 include, without limitation: (i) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defense on time to avoid prejudicing the defense, DISPL may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. DISPL will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a DISPL Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“DISPL Associates” are DISPL’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Customer Data, including without limitation Excluded Data, or (2) violation of Privacy Policy through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by DISPL, by Customer’s customers or other users, by hackers, and by any other third party.)

10. LIMITATION OF LIABILITY.

10.1.  Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, DISPL’S AGGREGATE LIABILITY TO THE CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO DISPL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of the Article 5 (Restrictions).

10.2.  Excluded Damages. IN NO EVENT WILL DISPL BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3.  Clarifications & Disclaimers. The limitations of liability outlined in this Article 10 extend to DISPL’s officers, directors, employees, agents, and third-party contractors. They apply: (a) to liability resulting from negligence; (b) irrespective of the form of action, whether in contract, tort, strict product liability, or any other form; (c) even if DISPL is forewarned of the potential damages in question and regardless of whether such damages were foreseeable; and (d) even if the remedies provided to the Customer fail to fulfill their essential purpose. The Customer acknowledges and agrees that the pricing determined by DISPL, and the decision to enter into this Agreement, is based upon the limitations of liability and disclaimers of warranties and damages specified in this Article 10, which form a fundamental element of the agreement between the parties. If applicable law restricts the application of this Article 10, DISPL’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, the liability limits and other rights set forth in this Article 10 apply likewise to DISPL’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11. TERM & TERMINATION.

11.1.  Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order or DISPL’s invoice, if none, for one (1) year. Your Subscription will automatically renew for another Subscription Term (as defined in the Order or DISPL’s invoice) of a period equal to your initial Subscription term, unless either party refuses such renewal by written notice 30 or more days before the renewal date. All renewals are subject to the applicable DISPL tariff plans continuing to be offered and will be charged at the then-current rates.

11.2.  Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting DISPL’s other rights and remedies, DISPL may suspend or terminate a Customer’s Client’s or other User’s access to the Software at any time, without advanced notice, if DISPL reasonably concludes such Customer’s Client or other User has conducted itself in a way that is not consistent with the requirements of this Agreement or the EULA, or in a way that subjects DISPL to potential liability.

11.3.  Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), this Section 11.3 (Effect of Termination) and 12 (Miscellaneous); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

12. MISCELLANEOUS.

12.1.  Independent Contractors. The parties are independent contractors and will represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no DISPL employee or contractor will be an employee of Customer.

12.2.  Notices. DISPL may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to User’s Support: support@displayforce.ai. In addition, Customer is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact Sergei Galeev, address: 1 Iapetou Str, 4101 Agios Athanasios, Limassol, Cyprus, email: serge.galeev@displayforce.ai; and (b) DISPL will terminate the accounts of subscribers who are repeat copyright infringers.

12.3.  Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.

12.4.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without DISPL’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5.  Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6.  No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7.  Choice of Law & Jurisdiction.

In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement.

If you are located in the United States, this Agreement will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) must be brought in state or federal court in San Francisco, California, unless both you and DISPL agree to some other location. You and DISPL both consent to venue and personal jurisdiction in San Francisco, California.

If you located in any other jurisdictions, this Agreement will be interpreted in accordance with the laws of the Republic of Cyprus.  Judicial proceedings must be brought in the courts of Cyprus, unless both you and DISPL agree to some other location. You and DISPL both consent to venue and personal jurisdiction in the Republic of Cyprus.

The Convention of the United Nations on Contracts for the International Sale of Goods dated April 11, 1980 shall not apply. If you are the customer located in the United States, please note that the Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

Notwithstanding any other provision of this Agreement, DISPL reserves the right to seek injunctive relief or other equitable remedy in any court of competent jurisdiction to prevent or otherwise restrain a breach of this Agreement, including but not limited to, a violation of DISPL’s IP Rights or Customer’s confidentiality obligations.

12.8.  Technology Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation, EU embargo rules and restrictions or (b) DISPL Export Compliance Policy. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export such software to, a country subject to a United States embargo.

12.9.  Entire Agreement. This Agreement, including any applicable Additional Documents, sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.10.     Amendment. DISPL may amend this Agreement from time to time by posting an amended version at its Website. Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to this Agreement.  Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Software products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order. Also, this Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.

Notwithstanding the foregoing provisions of this Section 12.10, DISPL may revise this Agreement and EULA and Documentation at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.10.

In the event of a discrepancy between the terms of the EULA and this Agreement, this Agreement shall prevail.

Posted/Revised: April 08,2024

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Previous version: October 17,2023