COMPELLON MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement is attached to and incorporated by reference into an Order Form (Proposal / Statement of Work / Service Order) entered into between Compellon, Inc., a Delaware corporation, with its principal place of business located at 23461 South Pointe Dr., Suite 350, Laguna Hills, CA 92653 ("Compellon"), and the "Customer" identified in the Order Form. This Master Subscription Agreement and the Order Form combine to form a single agreement and together shall be referred to herein as the "Agreement." In the event of a discrepancy between this Master Subscription Agreement and the Order Form, the Order Form shall govern.
BACKGROUND
Compellon offers Compellon20|20, a proprietary hosted data discovery and predictive analytics solution to its customers (the "Service").
AGREEMENT
NOW THEREFORE, the parties hereby agree as follows:
1. Service. Subject to the terms and conditions of this Agreement and during the Term, Compellon hereby grants Customer a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 15 herein) and terminable right to access and to use the Service solely for Customer's internal business operations in accordance with the Order Form. The terms of this Agreement shall also apply to any modules or features that augment or enhance the Service and are subsequently provided by Compellon to Customer pursuant to an existing or a new Order Form. In the event of a conflict between this Agreement and the Order Form, the Order Form shall control. Compellon shall host the Service and may update the functionality and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Service and its customers' use of the Service.
2. Restrictions. The rights granted in this Agreement and Customer's use of the Service shall not include service bureau use, outsourcing, renting, or time-sharing of the Service. Customer agrees that the rights granted to Customer are provided to Customer on the condition that Customer does not (and does not allow any third party to) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. Customer is expressly prohibited from sublicensing use of the Service to any third parties.
3. Authorized Users. Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by Customer's authorized users ("Users"), or otherwise through Customer's facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party. Customer will require each User to create a unique User name and password ("User ID") to access and use the Service and to ensure the security and confidentiality of his or her User ID. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify Compellon of any unauthorized use of a User ID or any other breach of security known to it. Customer acknowledges and agrees that all Users must, before accessing or using the Service, accept and agree to the terms and conditions of Compellon's end user license agreement in substantially the form attached hereto as Exhibit B (the "EULA"). In the event the terms of the EULA conflict with or expand the terms of this Agreement, this Agreement shall control. Customer shall promptly notify Compellon of any violation of the terms and conditions of the EULA by any User and shall use commercially reasonable efforts to abate any such breach and enforce Compellon's rights thereunder.
4. Customer Data.
4.1 Customer License. Subject to the terms and conditions of this Agreement, Customer grants Compellon a limited non-exclusive non-transferable (except in connection with an assignment under Section 15 herein) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data (as defined below) to the extent necessary to provide the Service to Customer. As used in this Agreement, the term "Customer Data" shall mean any data, information, or other materials of any nature whatsoever, provided to Compellon by Customer in the course of implementing and/or using the Service.
4.2 Personal Data. "Personal Data" means information about an individual that (i) can be used to identify, contact or locate a specific individual; (ii) can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual; or (iii) is defined as "personal data" or "personal information" by applicable laws or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual. Compellon shall be under no obligation to encrypt Customer Data and Compellon shall not be liable for any Personal Data it receives from Customer as Customer Data. Customer shall be responsible for removing or making anonymous any Personal Data prior to providing Customer Data to Compellon.
5. Ownership. Customer agrees that Compellon shall own all rights, title and interest in and to, and all intellectual property rights embodied in, the Service and the underlying software and algorithms used to provide the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as expressly provided in Section 1 above, this Agreement does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. All rights not expressly granted herein are reserved by Compellon. Subject to the terms of this Agreement, Compellon agrees that, as between Customer and Compellon, Customer Data shall at all times be considered the property of Customer. In addition, Customer shall own all results obtained from the Service based on Customer Data.
6. Right to Monitor. Compellon will have the right to review and monitor all use of the Service to ensure compliance with all of the terms of the Agreement and evaluate performance of the Service. Compellon will also have the right to analyze and evaluate use of the Service, both on an individual basis and in the aggregate, and otherwise to collect, create and analyze metadata on an anonymized basis about Customer's and the Users' use of the Service provided that such metadata is never disclosed to any third party other than in an anonymized and aggregate format. Metadata is defined as key system metrics collected to measure system stability and performance. Metadata can include usage statistics, file types and sizes, file access statistics, analysis performance statistics, etc. Metadata does NOT include any customer data.
7. Term and Termination.
7.1 Term. The term of this Agreement shall be as set forth in the Order Form.
7.2 Termination. This Agreement may be terminated: (i) by a party thirty (30) business days after the other party's receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement, unless such party cures such breach within said thirty (30) business days period; (ii) upon sixty (60) days' written notice pursuant Section 7.1, or (iii) upon written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its business voluntarily or otherwise, and same has not been discharged or terminated within ninety (90) days. Notwithstanding the foregoing, Compellon may immediately and without prior notice terminate or suspend Customer's access to the Service and/or remove any Customer Data stored on the Service in the event Compellon reasonably believes that continued Customer access or storage may harm the Service, expose Compellon to liability or is necessary to comply with applicable law; provided, however, that Compellon shall notify Customer in a reasonable timeframe following such termination and the parties shall work together in good faith to resolve or remove the harm, potential liability, or illegal activity that led to such termination and restore access to the Service, if possible.
7.3 Obligations upon Termination or Expiration. Promptly upon expiration or termination of this Agreement for any reason, Customer shall pay any unpaid and outstanding Fees due to Compellon that have accrued as of the date of expiration or termination. Customer agrees that, following termination or expiration of the Agreement, Compellon may immediately deactivate Customer's account and that, following a reasonable period of not less than ninety (90) days, shall be entitled to delete Customer Data from Compellon's Service. Customer further agrees that Compellon shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided, that Compellon is in compliance with the terms of this Section 7.3.
7.4 Survival. Sections 7.3, 7.4, 9.3, 12, 13, 14 and 15 shall survive the termination or expiration of this Agreement.
8. Fees and Payment.
8.1 Fees and Payment. Customer shall pay Compellon all fees set forth on the Order Form, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Compellon by any authority in connection with this Agreement, excluding taxes based upon Compellon's net income, (collectively, the "Fees"). All Fees shall be payable as per the payment terms set forth in the applicable Order Form and Subscription Order. Customer agrees that the Fees are based on the Customer's proposed use of the Service as set forth in the Order Form and Subscription Order. Any use of the Service beyond the scope defined in the Order Form and Subscription Order may require payment of additional fees.
8.2 Late Payments. Customer shall be responsible for interest on all Fees overdue by more than thirty (30) days from the date on the invoice at a rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by applicable law. Compellon also reserves the right to suspend Customer's access to and/or use of the Service if a payment is due but remains unpaid for more than fifteen (15) days. Customer agrees that Compellon shall not be liable to Customer or other third party for any suspension of the Service pursuant to this Section 8.2.
9. Terms of Service. Customer agrees to the following terms of service:
9.1 Customer must have Internet Access. Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web. Customer understands that DSL, cable, or other high speed Internet connection is required for proper performance of the Service.
9.2 Security, Data Integrity and Backup Warranty. Subject to Section 4.2, Compellon agrees to use commercially reasonable efforts to safeguard and accurately maintain the integrity of Customer Data, utilizing at a minimum industry standard security and backup procedures.
9.3 Support and SLA. Compellon shall use reasonable endeavors to provide the level of support services and access to the Software in accordance with the service level set forth on Exhibit A attached hereto (the "SLA"). Such support services shall only be given to a designated primary and backup contact of the Customer who has either received training from Compellon or is sufficiently familiar with the operation of the Service. Compellon shall only provide services in excess of those set forth on the Order Form at Compellon's then-current hourly rate, pursuant to the terms and conditions of this Agreement and upon any other terms and conditions mutually agreed to in the Order Form by the parties regarding such support and maintenance.
9.4 Confidential Information.
(a) In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party ("Confidential Information"). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, customer and supplier lists, forecasts, and projections. For the avoidance of doubt, Customer Data is the Confidential Information of Customer and the Service is the Confidential Information of Compellon. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
(b) Except as expressly permitted in this Agreement, each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information. Each party shall use the Confidential Information of the other party solely for the purpose of this Agreement. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Upon request, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that neither party shall be obligated to purge any data that has been archived, provided that the terms of this Section 9 are otherwise observed.
10. Modifications to or Discontinuation of the Service. Compellon reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that Compellon modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Compellon, at Customer's request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Compellon is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for the terminated portion of the Term. Customer acknowledges that Compellon reserves the right to discontinue offering the Service at the conclusion of Customer's then current Term. Customer agrees that Compellon shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 10.
11. Warranties.
11.1 Limited Warranty. Compellon warrants to Customer that the Service will achieve in all material respects the functionality described in the applicable Order Form and that such functionality will be maintained in all material respects in subsequent upgrades to the Service. Compellon does not warrant the accuracy or reliability of the Service or the results obtained therefrom. Customer's sole and exclusive remedy for Compellon's breach of this warranty shall be to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the applicable Order Form and if Compellon is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and shall be entitled to receive a pro-rata refund of the subscription fees paid for under the Agreement for its use of the Service for the terminated portion of the Term. Compellon shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem.
11.2 Non-Infringement Warranty. Compellon warrants that it is the sole owner and has full power and authority to grant the subscription and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the subscription of and authorized use by Customer of the Service as described herein will in any way constitute an infringement or other violation of any copyright or trademark of any third party.
12. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 11 ABOVE, COMPELLON DOES NOT REPRESENT THAT CUSTOMER'S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 11 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY COMPELLON. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 11 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER'S PURPOSES.
13. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF CUSTOMER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. The maximum liability of Compellon to any person, firm or corporation whatsoever arising out of or in the connection with any subscription, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in Fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of Compellon arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of Fees charged in connection with the subscription of the Service and that, were Compellon to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 14 BELOW.
14. Indemnification.
14.1 Infringement. Compellon will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result from the infringement by Compellon of any copyright, trademark, or misappropriation of a trade secret relating to the Service, provided that Customer (a) promptly gives Compellon notice of the claim, suit, action, or proceeding; (b) gives Compellon sole control of the defense and related settlement negotiations; and (c) provides Compellon with all reasonably available information and assistance necessary to perform Compellon's obligations under this paragraph. If the Service is held to infringe, Compellon will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a subscription that will protect Customer against such claim without cost to Customer, or (b) to replace the Service with a non-infringing Service, and if neither (a) nor (b) are reasonably practical, Compellon may terminate the Agreement and pay a pro-rata refund of the Fees for the terminated portion of the Term.
14.2 Disclosure of Customer Data. Subject to Section 4.2, Compellon will indemnify, defend and hold Customer harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer which arise out of or result directly from Compellon's gross negligence in preventing unauthorized access to confidential Customer Data or Compellon's willful misconduct in disclosing Customer Data, as determined by a court of competent jurisdiction in connection with a claim by a third party alleging a breach of confidentiality. Compellon's indemnification obligations under this Section 14.2 are expressly premised upon Customer (a) promptly giving Compellon notice of any such third party claim, suit, action, or proceeding; (b) giving Compellon sole control of the defense and related settlement negotiations; and (c) promptly providing Compellon with all reasonably available information and assistance necessary to perform Compellon's obligations under this Section 14.2.
14.3 Customer's Indemnity. Customer shall indemnify, defend, and hold Compellon harmless from and against any and all Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Compellon which arise out of or result from a claim by a third-party (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party , (ii) arising out of Customer's failure to remove Personal Data prior to providing Compellon with Customer Data, or (iii) arising out of Customer's gross negligence or willful misconduct; provided, that Compellon (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer's obligations under this paragraph.
14.4 Survival. The indemnification obligations contained in this Section 14 shall survive termination of this Agreement for one year.
15. Miscellaneous. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor's business or assets to which this Agreement relates. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Compellon reserves the right to name Customer as a user of the Service. This Agreement, including all exhibits and/or attachments represent the entire agreement of the parties and supersedes all prior discussions and/or agreements between the parties and is intended to be the final expression of their Agreement. Except as expressly set forth herein, it shall not be modified or amended except in writing signed by both parties. This Agreement shall be governed in accordance with the laws of the State of California and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and/or costs. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. This Agreement may be executed in counterparts and/or by facsimile and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.
EXHIBIT A
SUPPORT AND SLA
Compellon will operate a help desk between the hours of 9:00am and 6.00pm Pacific Time from Monday to Friday and will use reasonable endeavors to respond to any report of a problem on the same day that the problem is reported to Compellon. After that initial report, Compellon will investigate the cause and advise on the necessary action required to fix the problem. Compellon will use reasonable endeavors to provide that fix as soon as reasonably practicable, although Compellon cannot guarantee that the problem will be fixed within a certain period because of factors outside its control.
Compellon will use reasonable endeavors to provide fault resolution within the timeframes outlined in the service level table below:

SLA:
Full access to the Service:
* 99% during business hours
* 97% during non-business hours
EXHIBIT B
END USER LICENSE AGREEMENT (EULA)
IMPORTANT - PLEASE READ CAREFULLY: This End User License Agreement ("EULA") is a legal agreement between Compellon, Inc., a Delaware corporation ("Compellon") and you ("User," "your," or "you") and governs your use of Compellon2020 Customer Analytics, the proprietary hosted data discover and predictive analytics solution (the "Service") on behalf of the entity that has authorized you to use the Service ("your entity").
BY CLICKING ON THE "I AGREE" BUTTON OR USING THE SERVICE, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE EULA. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT USE THE SERVICE.
1. Service. Subject to the terms and conditions of this EULA and during the Term, Compellon hereby grants you a limited, non-exclusive, non-transferable and terminable license to access and to use the Service solely for your entity's internal business operations as agreed with Compellon. The terms of this EULA shall also apply to any modules or features that augment or enhance the Service. Compellon shall host the Service and may update the functionality and user interface of the Service from time to time in its sole discretion and in accordance with this EULA as part of its ongoing mission to improve the Service.
2. Restrictions. The rights granted in this EULA and your use of the Service shall not include service bureau use, outsourcing, renting, or time-sharing of the Service. You agree that the rights granted to you are provided on the condition that you do not (and do not allow any third party to) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. You are expressly prohibited from sublicensing use of the Service to any third parties.
3. User ID. In order to use the Service, you will be prompted to create a unique password-protected user account. You are responsible for maintaining the confidentiality of your password and login information. You must immediately notify Compellon of any unauthorized use of your password or account, or any other breach of security. Your entity will be solely responsible to Compellon for actions under your account and password, whether authorized by you or not.
4. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE MASTER SERVICES AGREEMENT THAT COMPELLON HAS SIGNED WITH YOUT ENTITY, THE SERVICE IS PROVIDED TO USER ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPELLON DOES NOT REPRESENT THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPELLON DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN YOUR ENTITY'S MASTER SERVICES AGREEMENT. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE RESULTS OBTAINED THEREFROM ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
5. Limitations of Liability. IN NO EVENT SHALL COMPELLON BE LIABLE TO YOU FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF USER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THIS EULA EVEN IF COMPELLON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6. Privacy Policy. We respect your privacy and strive to protect your personal information that we may collect through the Service. Please read our Privacy Policy, which is incorporated herein by reference and describes our privacy practices relative to information collected when you use the Service or otherwise disclose your personal information to us.
7. Termination. Without prejudice to any other rights that Compellon may have, this EULA will automatically terminate if you fail to comply with the terms and conditions of this EULA. In such event, you must immediately cease all use of the Service.
8. Miscellaneous. This EULA shall be governed in accordance with the laws of the State of California and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this EULA (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect. In the event of any litigation or any controversy or dispute arising out of or in connection with this EULA, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and/or costs. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. Failure or delay on the part of Compellon to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of the Company. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this EULA.