MASTER SOLUTION AGREEMENT
This Ably Master Solution Agreement (the “Agreement”) is between Ably Realtime Ltd., organized under the laws of England (“Ably”), and the entity set forth in the Order Form (as that term is defined below; “Customer”).
Ably has developed a proprietary messaging and data streaming platform and service. Customer wishes to purchase access to this cloud-based solution and other services as described in the Order Form. This Agreement and the Order Form together constitute an agreement between Ably and Customer, to which both parties are legally bound. Notices to Ably as required by this Agreement should be sent via email to [email protected].
DEFINITIONS. The following capitalized terms used in this Agreement will have the meanings given below:
1.1. “Ably Service”: the cloud-based internet- or network-delivered service(s) Ably delivers to Customer, as described in the Order Form, including the features, functionality, websites, and analytics made available by Ably as part of its offering, and any new updates, versions, and changes to any of the foregoing as released by Ably.
1.2. “Ably Software”: software applications and tools, documentation, and application programming interfaces (APIs) made available to Customer for use with the Ably Service, and as may be updated or modified by Ably.
1.3. “Ably Solution”: (a) Ably Service; (b) Ably Software; and (c) Ancillary Services.
1.4. “Ancillary Services”: Ably integration, set-up, professional, support and maintenance services, as described in the Order Form and the Support and Service Level Policy Addendum, and which may include provision of enhanced uptime warranties under the Service Level Agreement.
1.5. “Content”: all content, text, video, audio, graphics, files, interfaces, and materials transmitted via the Ably Solution and/or Other Applications.
1.6. “Customer Application”: the Customer’s End User software application configured using the Ably Software to take advantage of the Ably Service.
1.7. “Customer Content”: Content originating from Customer and/or End Users.
1.8. “Data Processing Addendum” or “DPA”: the data processing addendum set forth https://ably.com/data-processing-addendum.
1.9. “End User(s)”: the end users of Customer’s Ably Solution-enabled services and applications, including end users of the Customer Application.
1.10. “Evaluation Trial”: provision of the Ably Solution on a trial, beta, or evaluation basis and without charge.
1.11. “Order Form” or “Order”: the ordering document separately signed by the parties and referencing this Agreement, setting forth the applicable Ably Solution subscriptions Customer has purchased, terms regarding Ancillary Services, if any, and other associated or supplementary terms.
1.12. “Other Applications”: the (a) Customer Application, and (b) online or offline software, products, websites, services, information, platforms, data, functionality, offerings, hardware, and networks not developed by Ably.
1.13. “Scheduled Downtime”: temporary planned downtime of the Reactor Queues feature of the Ably Service with at least seven business days’ notice. Ably service status and incident log are available at https://status.ably.com.
1.14. “Service Level Agreement” or “SLA”: the service level agreement set forth in the Order Form and Support and Service Level Policy Addendum.
1.15. “Support and Service Level Policy Addendum”: the Ancillary Services document set forth at https://ably.com/acceptable-use-policy.
2.1. Availability. Customer's access to the Ably Solution is detailed in the Order Form. Customer will provide to Ably, and acknowledges that Ably’s ability to successfully provide the Ably Solution depends on, reasonable and necessary cooperation and assistance, including timely decision-making, reliable access to project management, API access, and any items as may be described in the Order Form. Except as specifically set forth in an Order Form, Customer will have sole responsibility for the costs, expenses and deployment of any interconnection, installation and testing to use the Ably Solution and Other Applications.
2.2. Evaluation Trial. Any data, personalizations, integrations, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless Customer purchases a subscription to the applicable Ably Solution. Except as the parties may otherwise agree in the Order Form, Ably is under no obligation to provide Ancillary Services during or in support of the Evaluation Trial. The Evaluation Trial is provided “as is” and with all faults, without any warranty, and the SLA does not apply to any Evaluation Trial. Customer must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges, unless Ably notifies Customer or if the Order Form states otherwise.
2.2. Customer Content. Customer retains all right, title and interest in and to Customer Content, subject to this section. Customer hereby grants to Ably, on behalf of Customer and End Users, a non-exclusive, worldwide, fully paid, royalty-free license, during the Customer’s subscription term, to use, reproduce, and process Customer Content for the purposes of and in conjunction with providing and maintaining the Ably Solution. All Customer Content is Customer's sole responsibility. Under no circumstances will Ably be liable in any way for any Customer Content. Ably may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect rights, property or safety.
2.3. Availability. Access to the Ably Solution is subject to: (a) Scheduled Downtime; (b) downtime caused by concurrent or consecutive failures, or failures at multiple locations, impacting the performance of internet services, networks or traffic exchange or control points controlled by entities other than Ably, including denial-of-service or other network attacks; (c) downtime caused by any acts, omissions, connections or equipment of Customer, End User, or by Other Applications; (d) where the Ably Solution becomes unavailable as a result of circumstances or causes beyond Ably’s reasonable control, including any force majeure event; (e) suspension or termination as permitted in this Agreement; (f) suspension or termination for emergency reasons, or as required by law or any governmental authority or agency; or (g) suspension or termination in order to prevent or ameliorate violations or infringements of third party rights or applicable law.
2.4. Feedback. Ably may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, comments, suggestions, or improvements relating to the Ably Solution.
2.5. Data. Customer acknowledges the collection, storage, generation, processing, and use by or for Ably of anonymized or non-personally identifying data (including meta-data, testing, analytical, diagnostic and technical data, predictive analytics models, AI, machine learning, performance, and usage statistics) concerning or arising from use of, or generated by, the Ably Solution (“Meta-Data”), in whole or in part, including without limitation: (a) in order to provide the functionality of, improve, and maintain the Ably Solution, (b) for processing transactions and payments, (c) for solution development, and (d) for verifying compliance. For clarity, the term “Meta-Data” does not include personally identifying data or Customer Content.
2.6. Access Information. Customer shall maintain the confidentiality of user name, password, and other technical information provided to Customer for access to the Ably Solution (“Access Information”) and is responsible for all use of Access Information. Customer will not transfer to any party Access Information, or use access information of another, without Ably’s prior written consent. Customer will immediately notify Ably of any unauthorized use of Access Information or any other breach of security.
2.7. Security and Compliance. Customer will take all necessary and reasonable steps to ensure that Customer has full legal right and authority to disclose and process all personal and personally identifying data, and that the processing of such data will not violate any applicable data protection or data privacy laws. If Ably is required to adhere to instructions or requirements in respect of the processing of such data on behalf of Customer, or to adhere to changes in applicable law, and such compliance would prevent or limit Ably’s ability to provide the Ably Solution as intended (in whole or in part) without, in the reasonable discretion of Ably, material or costly changes to its system or administration, Ably may limit or cancel the Ably Solution, in whole or in part, without any liability or obligation to Customer. Customer acknowledges that Ably is a data processor to the extent Ably processes personal data on behalf of Customer as part of the Ably Solution, and that Customer is the data controller. The parties hereby agree to the terms of the DPA.
2.8. Acceptable Use Policy. Customer shall comply with the Ably Acceptable Use Policy set forth at https://ably.com/acceptable-use-policy.
2.9. Ancillary Services. In consideration of Customer's compliance with this Agreement, Ably will provide the Ancillary Services as set out in the Order Form.
2.10. Service Messages. For purposes of service messages and notices about the Ably Solution to Customer, Ably may place a banner notice across Customer’s dedicated dashboard pages and send notices via email to an email address associated with Customer’s account.
LICENSES TO CUSTOMER
3.1. License Grant. Subject to Customer's compliance with the obligations of this Agreement, Ably hereby grants to Customer a worldwide, non-sublicensable, non-transferable, and non-exclusive license to (a) install and use the applicable components of the Ably Software on any computing device on which the Ably Software is intended to run, for Customer’s internal use in support of Customer’s business operations, in the development, testing and operation of the Customer Application, and in setting up the Ably Solution in Customer’s environment; and (b) reproduce and distribute copies of the applicable components of the Ably Software (designated by Ably as client libraries suitable for such use), solely as embedded in the Customer Application, and solely for the purpose of utilizing the Ably Solution.
3.2. Updates. Updates may be required for continued use of the Ably Solution. The development, timing and frequency of Update releases is in Ably’s sole discretion, except as may otherwise be set forth in the Order Form.
3.3. Unauthorized Use. Except as set forth above, Customer will not (a) make more than the number of copies of Ably Software reasonably required for authorized use and distribution as permitted by section 3.1; (b) modify, or create derivative works or improvements of, the Ably Software; or (c) sublicense, rent, lease, or host the Ably Software. All rights not expressly granted in this section are reserved to Ably. Customer will have no right or license to the Ably Software other than the rights set forth in section 3.1.
3.4. Ownership. Ably and its licensors retain all right, title and interest in the Ably Software and associated intellectual property rights, and all copies of the Ably Software. The structure, sequence, organization and code of the Ably Software constitutes Ably’s and Ably licensors' valuable trade secrets and copyrighted confidential information. Customer will preserve and not suppress Ably proprietary notices, markings, and branding associated with or displayed via the use of the Ably Software.
3.5. Reverse Engineering. Customer will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the Ably Solution, or work around technical protections or limitations associated with the Ably Solution, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Ably Solution; (c) such activity is confined to those parts of the Ably Solution which are necessary to achieve interoperability; and (d) Ably has not made such information available to Customer under reasonable terms and conditions upon Customer’s request sent to [email protected] Any information supplied to or obtained by Customer under this section as a result of reverse engineering may only be used by Customer for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Ably Solution.
3.6. Open Source. Certain components or libraries included in or bundled with the Ably Software may be covered by open source licenses that are not copyleft, and/or that do not otherwise operate to impact the Customer Application or Customer’s rights. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open source licenses.
3.7. Services Deliverables. Ably retains all right, title and interest in and to any ”Services Deliverables”, defined as deliverables, software, materials, data, information or content provided to Customer in connection with Customer’s use of the Ably Solution, or developed as part of the Ancillary Services, and all associated intellectual property rights. Ably grants to Customer, for as long a subscription to the Ably Solution is in effect, a non-exclusive, non-transferable, worldwide license to use such Services Deliverables solely for Customer’s internal operations in connection with authorized use of the Ably Solution. The licenses set forth in this section are the only licenses granted to Customer with respect to the Services Deliverables or associated intellectual property rights.
3.8. Reservation of Rights. Ably retains all right, title and interest in and to, and as between the parties, is the exclusive owner of, the Ably Solution, and all associated intellectual property rights. The Ably Solution is for use solely by Customer and its staff, for Customer's internal business purposes and for the operation of the Customer Application, and, except as otherwise set forth in the Order Form, not for Customer's resale or provision to any third party, including by way of a service bureau or similar basis. Ably grants no licensed rights to patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Ably Solution constitute Ably’s copyrightable content, trade dress, and trademarks and servicemarks, as applicable.
4.1. Payments. Customer will pay to Ably the fees listed in the Order Form. Fees are exclusive of bank service fees or currency exchange settlements. All payments are non-refundable notwithstanding subscription termination (except as may otherwise be specified in the Order Form or this Agreement). Charges are imposed at the beginning of the subscription. Overage charges and/or rate, transfer or usage limits may be imposed based on Ably’s measurements of Customer’s use of the Ably Solution, unless otherwise agreed to in writing. Such data transfer limits or overage charges are as set forth in the Order Form. Customer represents and warrants that Customer: (a) is authorized to use the billing account provided to Ably and that any payment information provided is true, complete and accurate; and (b) has full authorization to allow Ably to charge Customer using Customer’s billing account. Except as otherwise set forth in the Order Form, payments are due within 30 days of Ably’s invoice. If Customer is delinquent in the payment of any invoice that has not been disputed in accordance with section 4.3, Ably may at its option, with five business days written notice to Customer, suspend access to the Ably Solution until such payments are made in full. Any payments that are not timely paid as provided hereunder will, at Ably’s option, bear interest at the rate of the lower of (c) ten percent per annum; or (d) the highest rate permitted by applicable law. Ably may invoice Customer at the same time for more than one prior billing period for amounts that have not previously been processed. Customer will not develop multiple Customer Applications to simulate or act as a single Customer Application or otherwise access the Ably Solution in a manner intended to avoid incurring fees.
4.2. Response to Process. If Ably is required to respond to a subpoena or other formal request from a third party or a governmental agency for records, Content or other information relating to the Ably Solution or services Ably has performed for Customer or on Customer's behalf, or to testify by deposition or otherwise, Customer will reimburse Ably’s reasonable time and expenses incurred in accordance with Ably’s then-current time and expense rates, if the time required by Ably exceeds three person-hours, except as otherwise stated in the Order Form. For clarity, this section will not apply in connection with (a) adversarial proceedings between the parties, or (b) claims that Ably is required to defend and indemnify Customer under section 5.5.
4.3. Payment Disputes. If Customer disputes all or any part of an invoice, Customer shall notify Ably in writing prior to the applicable invoice due date. In such notice, Customer shall specify in reasonable detail the basis of the dispute. The due date for undisputed portions will remain the same. Within ten business days of Ably’s receipt of the Customer’s dispute notice, the parties will cause their authorized representatives to meet in person (live or via remote interaction) in a good faith effort to resolve the dispute.
4.4. Taxes. Customer will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with this Agreement or provision of the Ably Solution (excluding only taxes based on Ably’s income). If Ably is required to pay or collect any such taxes or other charges for which Customer is responsible under this section, Customer will pay the appropriate amount as invoiced. If Customer is required by local law to withhold or deduct taxes based upon Ably’s income from any payment(s) owed hereunder, such payment(s) will be increased (grossed up) in such amounts as would have been received by Ably as if no such withholding or deduction were required.
DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
5.1. Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, ABLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE ABLY SOLUTION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Customer acknowledges that use of the Ably Solution is not reliant or dependent on the availability of any future functionality or features or on any oral or written public or private comments or representations made by Ably. Ably makes no warranty that (a) the Ably Solution will meet Customer’s requirements, goals or needs, (b) Ably Solution access will be uninterrupted, timely, secure or error-free, or (c) any delays, errors or deficiencies in the Ably Solution will be corrected.
5.2. Content. Customer acknowledges that Ably is a conduit of Content that is stored only for as long as needed to transmit that Content. Ably bears no responsibility or liability for the deletion of or failure to store Content or to ensure that Content is accurate or complete. It is Customer’s sole responsibility to back up and maintain the legality of Content.
5.3. Other Applications. Customer acknowledges that providers of the Other Applications may access Customer Content as required for the inter-operation of such Other Applications with the Ably Solution. Ably will not be responsible for any disclosure, modification or deletion of Customer Content resulting from any such access by Other Applications or from enabling Other Applications to interoperate with the Ably Solution. Customer hereby waives and releases any claims arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the Ably Solution and on reasonable terms, Ably may cease providing such features of the Ably Solution, without refund, credit or other compensation.
5.4. Limitation of Liability.
(A) Subject to section 5.4(B), each party’s maximum cumulative aggregate liability for all claims, liabilities or obligations (other than Customer’s payment obligations under this Agreement and excluding prevailing party awards under section 7.7) arising under or relating to the “Subject Matter” (defined as this Agreement, its performance or non-performance, Content, the DPA, and the Ably Solution and its availability, quality or performance), regardless of the number of claims or the theory of liability, whether for breach of this Agreement, including breach of warranty, or in tort or otherwise, will not exceed the greater of (i) US$100,000 or (ii) all amounts paid by Customer to Ably under this Agreement, if any, during the 12-month period preceding the occurrence of the event giving rise to a claim of liability; except that each party’s maximum cumulative aggregate liability for all claims, liabilities or obligations, regardless of the number of claims or the theory of liability, caused by or arising from breach of the DPA or violations of data privacy, data protection or data security laws, will not exceed the greater of (a) US$500,000 or (b) all amounts paid by Customer to Ably under this Agreement, if any, during the 12-month period preceding the occurrence of the event giving rise to a claim of liability (such liability cap hereinafter the “Data Privacy Proviso”). Subject to section 5.4(B), neither party will be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, loss of profits, revenue, use, data, or other economic advantage, or cost of cover or replacement, in connection with, related to or arising out of the Subject Matter, regardless of the theory of liability, whether for breach of this Agreement, including breach of warranty, or in tort or otherwise, even if such party has been previously advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. Each party expressly disclaims that such party is owed any duties or are entitled to any remedies not expressly set forth in this Agreement. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
(B) Section 5.4(A) will not apply to: (i) obligations under or liability for breach of sections 5.5 or 5.6; or (ii) limit or exclude remedies, or limit or exclude the recovery of any damages or losses, caused by or arising or resulting from (a) breach of sections 2.9 or 3, or (b) infringement by one party of the intellectual property rights of the other party.
5.5. Ably Indemnity. For as long as a subscription term under this Agreement is in effect and for two years thereafter, Ably shall defend “Customer Parties” (defined as Customer, its affiliates, and officers, directors, employees and agents of Customer and its affiliates), at its expense, from and against any third party demand, claim, action, suit or legal proceeding alleging that Customer’s authorized use of the Ably Solution is an infringement of a third party intellectual property right. Further, Ably will indemnify and hold Customer Parties harmless against all costs, damages, losses, liabilities, and expenses (including, without limitation, costs and reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or such settlement amount negotiated by Ably, attributable to such claim.
5.5.1. Ably’s performance under this section 5.5 is conditioned on Customer’s compliance with the following conditions: (a) Customer promptly gives Ably written notice of the claim, provided that a failure to provide such notice shall only relieve Ably of its obligations to the extent Ably is materially prejudiced by such failure; (b) Customer gives Ably sole control of the defense and settlement of the claim, provided that Ably shall keep Customer reasonably informed as to the status and progress of the defense of the claims; and (c) Customer provides to Ably all available information, reasonable assistance and authority to defend, at Ably’s expense. Ably will not attempt to compromise or settle such claim without Customer’s prior written consent (not to be unreasonably withheld), provided that if such settlement does not require Customer to incur any liability or obligation, pay money, or admit fault, Ably may settle such claim with written notice to Customer but without Customer’s prior written consent.
5.5.2 Ably’s obligations under sections 5.5 will not apply to any claims to the extent based upon or arising from: (a) the combination of the Ably Solution with Other Applications; (b) modifications, extensions or enhancements of the Ably Solution developed by a party other than Ably; (c) functionality, components, APIs, portions, or aspects of the Ably Solution developed to enable the interoperability of the Ably Solution with Other Applications; (d) use or distribution of other than the latest unmodified version of Ably Software delivered to Customer; (e) modifications to the Ably Solution required by Customer; (f) Other Applications or Content; (gf) patent infringement claims arising from compliance with industry, technical or commercial standards or consortia such as the ISO, the W3C, or any other industry standard or practice, including XML, MPEG, HTTP, or industry standard formatting, security, communication, middleware or other protocols; (hg) any use, distribution or reproduction of the Ably Solution in breach of this Agreement; or (ih) intellectual property rights in which Customer or any Customer affiliate owns or has a direct or indirect interest.
5.5.3. If the Ably Solution becomes the subject of a third party intellectual property infringement, or misappropriation, or other claim, Ably may, in its sole discretion and at no cost to Customer: (a) modify the Ably Solution so that it no longer infringes or misappropriates; or (b) obtain a license for Customer’s continued use of the Ably Solution in accordance with this Agreement; or (c) otherwise resolve the issue; or (d) terminate Customer’s subscription for the Ably Solution and refund to Customer a prorated amount of any unused prepaid fees covering the remainder of the term of the terminated subscription. This section 5.5 states Customer’s sole remedy and Ably’s sole obligation with respect to infringement or misappropriation of a third party’s intellectual property rights with respect to the Ably Solution.
5.6. Customer Indemnity. For as long as a subscription term under this Agreement is in effect and for two years thereafter, Customer shall defend “Ably Parties” (defined as Ably, its affiliates, and officers, directors, employees and agents of Ably and its affiliates), at its expense, from and against any demand, claim, action, suit, or proceeding: (a) brought by End Users, or customers of Customer; or (b) arising out of or related to: (i) Customer Content; (ii) Customer Applications; (iii) any conduct or activity of End Users; or (iv) actual or alleged violation of applicable law. Further, Customer shall indemnify and hold the Ably Parties harmless against all costs, damages, losses, liabilities, and expenses (including, without limitation, costs and reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or such settlement amount negotiated by Customer, in connection with such claims. This section states Customer’s entire liability and Ably’s exclusive remedy for infringement of the intellectual property rights of a third party caused by Customer Content or Customer Applications.
5.6.1 Customer’s performance under this section 5.6 is conditioned on Ably’s compliance with the following conditions: (a) Ably promptly gives Customer written notice of the claim, provided that a failure to provide such notice will only relieve Customer of its obligations of this section to the extent Customer is materially prejudiced by such failure; (b) Ably gives Customer sole control of the defense and settlement of the claim, provided that Customer shall keep Ably reasonably informed as to the status and progress of the defense of the claims; and (c) Ably provides to Customer all available information, reasonable assistance and authority to defend, at Customer’s expense. Customer shall not attempt to compromise or settle such claim without Ably’s prior written consent (not to be unreasonably withheld), provided that if such settlement does not require Ably to incur any liability or obligation, pay money, or admit fault, Customer may settle such claim with written notice to Ably but without Ably’s prior written consent.
TERM & TERMINATION
6.1. Term. Access to the Ably Solution commences upon the subscription start date set forth in the Order Form and will continue in effect for the term specified in the Order Form. Customer is solely responsible for retrieval of Customer's data and feeds prior to termination of the subscription.
6.2. Termination. A subscription will be terminable for cause as follows: (a) by either party in the event of a material remediable breach of this Agreement; in such an event, the non-defaulting party will give notice of such default and opportunity to cure if the breach is remediable or reasonably capable of cure, and if the remediable breach is not substantially cured within thirty days from receipt of such written notice, the non-defaulting party may notify the defaulting party in writing of the immediate termination of all applicable subscriptions; or (b) immediately upon written notice by either party in the event of material irremediable breach of this Agreement; or (c) immediately upon Ably’s written notice if the Content or Other Applications become the subject of a claim of intellectual property or other rights infringement, or of a claim of privacy or data breach. Ably may additionally terminate a subscription upon written notice to Customer if either party: (d) becomes the subject of a legal proceeding under a law relating to insolvency or bankruptcy; (e) has property that becomes under the control of a custodian or equivalent under applicable law, or is assigned for the benefit of creditors; or (f) generally ceases relevant business operations; or (g) generally fails to pay debts as they become due or acknowledges in writing its inability to do so. Additionally, Ably may suspend or terminate a subscription in the event of (h) breach of section 7.2, or (i) Customer's violation of section 2.91 by Customer or any End User: (1) upon three business days written notice to Customer (“Violation Notice”), unless within such three business day period the offending activity has ceased; and (2) immediately upon written notice to Customer for violations that were the subject of a previous Violation Notice; and (3) as required by law or any court, agency or governmental authority, or for emergency reasons.
6.3. Effect. Upon termination, all access and licensed rights under this Agreement terminate, and Customer will cease all use of the Ably Solution, and pay any outstanding fees owed to Ably and all remaining fees applicable to the remaining term of the subscription. Termination will not relieve Customer of the obligation to pay fees payable to Ably for the period prior to the effective date of termination. Rightful and lawful termination of this Agreement by either party, or expiration under the terms hereof, will not give rise to the right for the non-terminating party, or to either party in the case of expiration, to recover damages or to indemnification of any nature. The rights of either party under this section 6 are in addition to any other rights and remedies permitted by law or under this Agreement.
7.1. Trademarks; Media. Neither party is granted any right, title or license to any trademarks or servicemarks of the other party. Ably reserves all right, title and interest in and to Ably trademarks, servicemarks, trade names, domain names, and similar identifiers. Customer hereby authorizes Ably to disclose in Ably websites, marketing collateral, and corporate presentations that Customer has selected Ably and purchased the use of Ably’s solutions and services. Customer may revoke such authorization at any time upon five business days written notice.
7.2. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States, the United Kingdom, the European Union, and other applicable jurisdictions. Without limiting the foregoing: (i) Customer represents and warrants that it is not listed on any government or international list of prohibited, sanctioned, or restricted parties, or located in or a national of a country that is subject to any government or international embargo, sanction or designation, (ii) Customer will not (and will not permit any third parties to) access or use the Ably Solution in violation of any export embargo, prohibition or restriction, or applicable law, and (iii) Customer will not submit any information or application that is controlled under the U.S. International Traffic in Arms Regulations or similar laws or regulations.
7.3. Force Majeure. Except for obligations to pay fees owed hereunder, no delay, failure or omission by either party to carry out or observe any of its obligations hereunder will give rise to any claim against such party or be deemed to be a breach of this Agreement if and for as long as such failure or omission arises from any cause beyond the reasonable control of that party.
7.4. Governing Law; Limitations. The Subject Matter (as defined in section 5.4), and any disputes between the parties and related to or concerning the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual), notwithstanding the choice of laws rules of any jurisdiction to the contrary, will be governed by the procedural and substantive laws ofNew York, USA, if Customer is headquartered or domiciled in North America, or the laws of England, if Customer is headquartered or domiciled anywhere else. Any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred.
7.5. Dispute Resolution. (A) Any disputes between or claims brought by either party arising out of or related to the Subject Matter (as defined in section 5.4), including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes (subject to section 7.5(B) below) must be referred to and finally settled by binding arbitration. If Customer is headquartered or domiciled in North America, arbitration will be conducted by JAMS (jamsadr.com) in accordance with the Comprehensive (Expedited) Rules of Arbitration in effect at the time of arbitration except as inconsistent with this section, and the venue for the arbitration will be New York City, New York. If Customer is headquartered or domiciled anywhere else, arbitration will be conducted before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce in effect at the time of arbitration except as inconsistent with this section, and the venue for the arbitration will be London. The arbitration will be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in New York City or London, as applicable. The arbitrator will apply the law specified in section 7.4 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, and awards, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award or ruling, except as required to enforce the award or ruling. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion. (B) Notwithstanding the foregoing, nothing in this section will preclude the right and ability of either party to bypass arbitration and file and maintain at any time in any court of competent jurisdiction under the laws applicable thereto an action for recovery of injunctive or provisional relief (and either party's right to do so is not arbitrable).
7.6. Assignment. Customer will not assign, delegate, or transfer, in whole or in part, this Agreement or any subscription, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without Ably’s prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. Ably may at any time assign, subcontract, or delegate obligations under this Agreement to an Ably affiliate without prior consent or notice. This Agreement will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
7.7. Injunctive Relief; Prevailing Party. Customer acknowledges that breach of this Agreement, or any unauthorized use, disclosure or distribution of the Ably Solution (or its functionality) may cause irreparable harm to Ably, the extent of which would be difficult to ascertain, and that Ably will be entitled to seek immediate injunctive relief (in addition to any other available remedies, including remedies under intellectual property rights, the availability of which Customer acknowledges), in any court of competent jurisdiction under the applicable laws thereto. A party prevailing in any litigation or arbitration related to this Agreement or the Subject Matter will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys' fees.
7.8. Miscellaneous. Except as may otherwise be set forth in the Order Form, this Agreement and the Order Form constitute the entire agreement between the parties and govern the use of the Ably Solution, superseding any prior agreements, understandings, communications or proposals. The terms of any click-wrap, on-line or similar agreement, and the terms of any purchase order, presented by Customer will be of no force or effect unless separately agreed to in an independent writing signed by an officer of Ably, who is the only person with authority to agree to such terms, order or agreement. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. No waiver of any provision of this Agreement will be deemed a further waiver or continuing waiver or such provision or any other provision, and a party’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement will be in the English language. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between the parties and any user or other person or entity, nor do these terms extend rights to any third party. Ably may update the terms of this Agreement periodically, and will notify Customer of such changes via email. Such updated terms will take effect upon the Customer's next subscription term renewal date.