SUBSCRIPTION USE TERMS

SUBSCRIPTION USE TERMS

IMPORTANT – READ CAREFULLY: THESE SUBSCRIPTION USE TERMS (“TERMS OF USE”) ARE A LEGAL AGREEMENT BETWEEN USGN, INC. (“USGN”) AND YOU (“CUSTOMER”) REGARDING CUSTOMER’S USE OF VARIOUS SUBSCRIPTION SERVICES PROVIDED BY USGN. BY SIGNING A SEPARATE CUSTOMER AGREEMENT LINKING TO OR INCORPORATING THESE TERMS OF USE BY REFERENCE, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THESE TERMS OF USE.

DEFINITIONS. The following words shall have the following meanings when used in this Terms of Use (Capitalized term used in these Terms of Use that are not defined below shall have the meaning set forth in the Customer Agreement):
1. “Affiliate” means any person or entity that controls or is controlled by Customer, or that together with Customer is under the common control of a third entity.
2. “Bypass” means a temporary procedure provided by USGN that permits Customer and its authorized users to use the Service during the correction of an Error.
3. “Customer Agreement” means any agreement between Customer and USGN for the purchase of Services and includes any Order or Proposal, as those terms are defined in the Customer Agreement, and includes these Terms of Use except to the extent these terms are expressly amended and/or superseded by the terms of the Customer Agreement.
4. “Customer Content” means digital data and graphical information that is uploaded to a Management Site or Project Site by Customer, including but not limited to CAD drawing files, photographs, meeting minutes, schedules, contact information, forms, reports or presentations.
5. “Error” means any failure of the Service to operate in accordance with the Specifications, and “Critical Error” means any Error that materially impairs the ability of Customer or its authorized users to access or use the Service and for which a Bypass is unavailable.
6. “USGN Technology” means both (1) “Hosted Technology” — which consists of USGN software and any other third party software, or proprietary technology that USGN hosts on USGN web sites as part of the Services, and makes available for Customer and its user to access via conventional Internet browsers, and (2) “Non-Hosted Technology” — which consists of any USGN software, job aids, templates or other technology component that is not hosted by USGN, but instead provided to Customer and/or its users to facilitate access to and/or use of the Hosted Technology, and (3) all related user documentations, and all Bypasses, updates, upgrades and enhancements to such technology made available by USGN to Customer during the term of the Customer Agreement.
OBLIGATIONS OF USGN.
1. Support-Upgrades. During the term of a Customer Agreement, and in exchange for the fees specified therein, USGN will provide Customer with the same updates, upgrades and enhancements to the USGN Technology that USGN regularly makes available to its customer base.
2. Technical Support. During the term of a Customer Agreement, USGN shall use reasonable commercial efforts to promptly correct any Critical Error upon notification received from Customer. Upon notification of any other Error, USGN shall use reasonable commercially efforts to correct such Error within a commercially reasonable period. USGN will maintain live customer phone support during the hours of 7:00 A.M. MST through 6:00 P.M. MST, Monday through Friday. USGN shall provide limited, additional after-hours support for emergency problem resolution via email or cell phone access. Customer shall be responsible for its own support and training calls from in-house employees, architects, contractors, vendors, and other authorized users. Customer will not be charged for issues caused solely by the Services or Errors in the USGN technology. Application building by USGN is not included in the technical support described in this Section.
3. Hosting; Up-Time. The Hosted Technology (including the Management Site) will be hosted on USGN servers. USGN shall use reasonable commercial efforts to cause the Management Site to remain available to Customer and its users at least ninety-nine percent (99%) of the time during any calendar quarter, with the exception of scheduled, pre-announced maintenance periods. To minimize server downtime during peak usage periods, USGN schedules maintenance and upgrades between 8:00 p.m. and 4:00 a.m. (MST).
4. Backups. USGN will perform a daily backup to the Management Site and all data and binary files associated with the Management Site, including all Customer Content. USGN will store the backup in a safe secure location, separate from the location of USGN’s servers. USGN retains daily backup for 180 days. Upon termination of the Customer Agreement, USGN may destroy any and all copies of Customer backup materials.
5. Security. USGN will employ industry standard security measures for the Hosted Technology and Management Site, including: (i) support of 256-bit encryption and two-factor secure authentication for the connection from Customer’s location to the hosted production backbone; (ii) use of two-factor authentication for administrative control of all routers and firewall; (iii) multiple level security generally consistent with the Gartner Group’s SaaS security recommendations; (iv) Customer ability to specify separate access levels through the use of passwords at specific Project and Management Site areas; and (v) limited secured authorized access to the USGN network operations center. USGN shall promptly notify Customer in the event USGN learns of any security violations (e.g., unauthorized user attempts or attempted hacking of the Management Site).
6. Hosted Platform Details. The Hosted Technology resides on centralized, high-speed servers located at a high level Network Operations Center (NOC). Currently, servers are located at two IO Data Center locations in Phoenix, Arizona. New information/data is synchronized between the two data centers and backed up off-site every four hours. The IO Data Center NOC features redundant emergency/disaster fail-over power generation systems and a 24/7, on-site staff supported by a digital, integrated server monitoring system, and high-level security. Additional details concerning the NOC and USGN’s disaster recovery plan are available from USGN upon request.
OBLIGATIONS OF CUSTOMER.
1. Security Matters. Customer is responsible for: (i) controlling the administration and distribution of all passwords for the Management Site and each Project Site; (ii) monitoring access by its authorized users to the Management Site and each Project Site; (iii) ensuring that all users with access have executed appropriate contracts with Customer to both protect Customer’s interests and to comply with Customer’s obligations to USGN under the Customer Agreement; and (iv) instructing users of the need to maintain back-up copies of all data input made to a Management Site or Project Site by such users. Customer shall use its best efforts to maintain the security of the Customer-controlled environment in which any USGN Technology is used or accessed.
2. Encryption. If Customer wishes to use the cryptographic features available through the USGN Technology, then Customer will need to obtain and provide to USGN a signed digital certificate from a certificate authority or a certificate server, and pay all third party fees associated therewith. The use of such certificates is subject to the terms specified by the certificate provider, and Customer is responsible for familiarizing itself with and evaluating such terms and limitations.
FEES AND PAYMENT PROVISIONS.
1. Fee Schedule; Payment. Fees and payment schedules are set forth in the Customer Agreement. USGN reserves the right to suspend Customer access to Projects Sites if payment of an undisputed invoice has not occurred by 90 days after Customer’s receipt.
2. Taxes. Customers shall pay any personal property, sales, use, value-added, withholding and similar taxes (other than taxes on USGN’s net income) arising from the transactions described in a Customer Agreement. To the extent Customer is exempt from sales or other taxes, Customer agrees to provide USGN, upon request, with the appropriate exemption certificate.
3. Refunds for Excess Down Time. If USGN’s measured uptime falls below the 99% minimum level during a calendar quarter, USGN will provide a partial refund or credit, if any, as specified in the Customer Agreement, for the relevant three-month period.
TERM AND TERMINATION
1. Term. The term of a Customer Agreement shall commence upon the Effective Date and shall continue in effect until terminated pursuant to this Section 5 or the provisions of the Customer Agreement. If no SOW is either active or executed during a period of 12 consecutive months, a Customer Agreement shall expire automatically at the end of such 12 month period.
2. Termination for Cause. Each party shall have the right to terminate an SOW (and the Customer Agreement, unless the breach relates to less than all outstanding SOWs) and any Project-related subscriptions relating to such SOW upon written notice to the other party in the event that the other party commits a material breach under the Customer Agreement and fails to cure such breach within thirty 30 days after receipt of written notice from the injured party specifying the breach or default. Each party shall also have the right to terminate a Customer Agreement (including all SOWs) upon written notice to the other party if the other party is adjudicated bankrupt, makes an assignment for the benefit of creditors or a receiver, trustee in bankruptcy, or a similar officer is appointed to take charge of all or any part of such party’s property or business.
3. Effect of Termination. Upon expiration or termination of a Customer Agreement pursuant to its terms (other than for a material uncured breach by Customer), at Customer’s option all then outstanding Projects and Project Sites shall remain in place until each Project is completed and any subscription fees applicable to such Projects shall continue in effect post-termination. Except as needed to support outstanding Projects under the prior sentence, upon expiration or termination of a Customer Agreement: (i) USGN shall, at the option of Customer, immediately destroy or deliver to Customer all copies of Customer Content and other data, papers and property of Customer then in USGN’s possession or control or stored on the Management Site or USGN’s servers; (ii) USGN shall deliver to Customer copies of SOW-specific Customer Content in its possession or control (provided, that USGN shall not be required to purge such materials from electronic backups described in Section 2.4), and (iii) Customer shall return to USGN any SOW-specific USGN Technology. Each party shall, upon request, certify to the other in writing the proper return or destruction (as required) of materials pursuant to the terms of this Section.
4. Payment on Termination; Survival. Upon termination of a Customer Agreement, USGN will be compensated for all Services completed prior to the date of termination (provided, however, that in the event of termination because of an uncured breach by USGN, Customer shall not be required to pay for the defective portion(s) of Services that gave rise to the termination) and for any additional post-termination transition Services, provided by USGN at the request of Customer, to satisfactorily close out any open Projects. The provisions of Sections 4, 5.3, 5.4, 6, 7 and 8 of these Terms of Use, and any related terms in the Customer Agreement, shall survive termination of a Customer Agreement.
INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY.
1. Confidentiality Obligations. All confidential information exchanged between the parties shall be subject to the terms of the Mutual NDA, as defined in the Customer Agreement. Each party shall use commercially reasonable efforts to ensure that all persons afforded access to the USGN Technology and the Management Site protect (and are bound to contractual nondisclosure agreements to protect) the other party’s trade secrets and confidential information against unauthorized use, dissemination, or disclosure.
2. Intellectual Property Rights. Customer acknowledges that the USGN Technology (i) is the commercially valuable, proprietary product of USGN, the design and development of which reflects the effort of skilled development experts and the investment of considerable time and money, and (ii) does and will contain substantial trade secrets of USGN, which USGN is entrusting to Customer in confidence to use only as expressly authorized by the Customer Agreement. USGN acknowledges that the Source Materials and Customer Content does and will contain substantial trade secrets of Customer, which Customer is entrusting to USGN in confidence to use only as expressly authorized by the Customer Agreement. Any copying, modification or distribution of the trade secrets described herein not expressly authorized by the Customer Agreement is strictly forbidden. Unless otherwise provided in a Customer Agreement, all right, title and interest to all modifications, configurations and customizations made to the USGN Technology and any derivative works created from the USGN Technology by USGN or the Customer (collectively, “Improvements”), shall remain (and vest solely) with USGN, and to the extent permitted by law all such Improvements made by Customer shall be considered “works made for hire” made for the benefit of USGN (and in the event they are not, Customer shall assign all rights in any such Improvements to USGN). Customer further agrees to perform all acts and sign any necessary documents or covenants and otherwise assist USGN to ensure USGN’s ownership of such Improvements. Nothing in this Section, however, shall be deemed to transfer to USGN any proprietary rights to Customer Source Materials or Customer Content. To the extent USGN has or obtains any rights with respect to domain names and IP addresses associated with the Management Site (including, without limitation, rights under registration agreements), USGN shall (at Customer’s request and expense) transfer to Customer any and all such rights.
3. Limited Rights of Use. Other than the express limited licenses to access and use the USGN Technology, Management Site and Project Sites as provided herein, USGN grants no title to or ownership to Customer of any USGN Technology, or any other rights under any patents, copyrights, trademarks, trade secrets or any other intellectual property rights of USGN.
4. Reproduction Rights. Customer may reproduce, solely for its own use, all manuals and documentation for the USGN Technology furnished by USGN, provided that all copies made by Customer shall retain and reproduce any proprietary notices or stamps. Customer shall not reproduce the software components of the USGN Technology except as expressly permitted by the Customer Agreement (including these Terms of Use) or otherwise in writing by USGN. To the extent Customer is permitted to make additional copies of Non-Hosted USGN Technology, Customer shall reproduce and include in all copies all copyright notices and proprietary legends of USGN contained in the originals.
5. Restrictions on Customer. Except as otherwise expressly permitted in the Customer Agreement (including these Terms of Use), Customer shall not: (i) modify or create any derivative works of the Management Site, USGN Technology or documentation, including any translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Management Site or USGN Technology; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Management Site or USGN Technology; or (iv) remove or alter any USGN or third-party supplier trademark, logo, copyright or other proprietary notice, symbol or label used in the Management Site or the USGN Technology; or (v) publish any review of the Management Site or USGN Technology without USGN’s prior written consent.
WARRANTIES; INDEMNIFICATION; LIABILITY LIMITATIONS.
1. USGN Warranty. Except as provided below, USGN represents and warrants that (i) it has sufficient right title and interest in the USGN Technology to grant the access and use rights and perform the Services as set forth in the Customer Agreement, and (ii) the Management Site and USGN Technology shall substantially conform to and function in accordance with the Specifications. Customer’s remedy for breach of the performance warranty in (ii) shall be for USGN to use commercially reasonable efforts to correct or replace, at no charge to Customer, any part of the Management Site or USGN Technology that fails such warranty. If, within a commercially reasonable period (not to exceed 30 days), USGN is unable to correct or replace the defective part, then Customer’s sole and exclusive additional remedy for breach of such performance warranty shall be to terminate the relevant Proposal(s) and receive a refund in an amount equal to the fees, if any, previously paid to USGN representing the then remaining term of the relevant subscription. USGN further warrants that the Services provided by USGN under the Customer Agreement shall be performed in a fully workmanlike manner and in accordance with the prevailing professional standards of the SaaS software industry; Customer’s exclusive remedy for this warranty shall be the re-performance of the deficient Services, and if USGN is unable to re-perform the deficient Services as warranted, Customer shall be entitled to recover the portion of the fees paid to USGN for the deficient Services, and such refund shall be USGN’s entire liability. The warranties in this Section shall survive Customer’s inspection, test and acceptance of Services. USGN FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. The foregoing warranties shall not apply to the extent an Error or other non-conformance is attributable to the unauthorized acts or omissions, or any modifications made to the USGN Technology, by Customer or any of its authorized users.
2. Infringement Indemnification. USGN shall indemnify, defend and hold Customer harmless from and against any and all costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer that arises out of or results from the actual or alleged infringement of any copyright, United States patent, trademark, or misappropriation of a trade secret relating to the USGN Technology or the Services, in each case in the form delivered to Customer hereunder. Provided that USGN complies with this Section and Section 7.3, Customer shall have no additional remedy against USGN by reason of a third party infringement claim. USGN shall not be responsible under this Section for a third party claim that arises, and would not have occurred but for, USGN’s adherence to Customer’s written instructions or directions involving the use of data or Source Materials provided by Customer, and Customer shall indemnify, defend and hold USGN harmless in such cases. Each party’s indemnification obligations under this Section require that the indemnified party: (i) promptly give the indemnifying party notice of the claim, suit, action, or proceeding; (ii) give the indemnifying party sole control of the defense and related settlement negotiations; and (iii) provide the indemnifying party with all reasonably available information and assistance necessary to perform its obligations under this Section. If, in USGN’s opinion, the USGN Technology is likely to become the subject of a claim of infringement, then USGN at its option may, at its own expense, either: (i) procure a license that will protect Customer against such claim; or (ii) or replace the relevant USGN Technology with a non-infringing substitute with comparable functionality. In the event that USGN, after using reasonable efforts is not able to carry out either (i) or (ii) above, USGN may elect to terminate the affected Proposals and provide Customer with a pro rata refund for the remaining term of the Subscription and for any unperformed Services.
3. Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY PROVISIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR (i) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE OPERATION OR USE OF THE USGN TECHNOLOGY, MANAGEMENT SITE OR THE PROVISION OF SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST EITHER PARTY MORE THAN TWO (2) YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST ARISES EXCEPT AS IT RELATES TO AN INDEMNITY OBLIGATION OR BREACH OF CONFIDENTIALITY OBLIGATIONS. IN ADDITION, USGN’S AGGREGATE LIABILITY UNDER A CUSTOMER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO USGN UNDER THE RELEVANT PROPOSAL(S) UNDER WHICH THE LIABILITY ARISES, AND THIS LIMITATION IS INTENDED TO APPLY TO ALL CLAIMS OTHER THAN INDEMNITY CLAIMS, WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THE CUSTOMER AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
MISCELLANEOUS
1. Compliance with Laws. Customer has sole responsibility for confirming that the performance of each Project, and the participation of the authorized users, will be in compliance with all applicable federal, state and local laws and regulations. Otherwise, each party agrees to comply with all applicable laws and regulations in the performance of its rights and obligations under a Customer Agreement.
2. Force Majeure. Either party shall be excused from delays in performing its obligations under a Customer Agreement to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that, in order to be excused from delay or failure to perform, such party must (i) act diligently to remedy the cause of such delay or failure and (ii) resume performance immediately upon termination of the event or condition giving rise to the excused performance. Notwithstanding anything to the contrary set forth in this Section, either party may terminate a Customer Agreement in the event that the other party’s performance is delayed pursuant to this Section for a period of at least thirty (30) days.
3. No Agency. All Services are performed by USGN as an independent contractor and not as the agent or employee of Customer. All persons furnished by USGN shall be for all purposes solely the employees or agents of USGN and not employees of Customer for any purpose.
4. Headings. Headings used herein and in a Customer Agreement are for reference and convenience only and shall not affect the interpretation hereof.
5. No Waiver. Except as otherwise set forth herein, no delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of a Customer Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
6. Governing Law. Each Customer Agreement shall be governed by and construed in accordance with the laws of Arizona, without regard to its conflict of law rules. Any legal action or proceeding relating to a Customer Agreement shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the exclusive personal jurisdiction of such courts and waives any defense relating to venue or forum non conveniens.
7. No Assignment. Except for an assignment by Customer to an Affiliate, neither party shall, without the prior written consent of the other party, assign, delegate, or transfer a Customer Agreement, or any of its rights or obligations under the Customer Agreement; provided, however, that either party may assign its complete rights and obligations under a Customer Agreement to a successor entity by way of merger, reorganization, consolidation, or sale of all or substantially all of such party’s assets, provided that such successor agrees to comply with all of the assignor’s obligations thereunder.
8. Non-Exclusive Agreement. A Customer Agreement shall not be construed as an exclusive dealings agreement between USGN and Customer. Each party remains free to contract for similar products and services with whomever it chooses.

Revised: December 12, 2013