These Terms of Service (“Terms”) govern your access to and use of our Platform.

Our Platform includes all our software-as-a-service offerings, such as IKE Office, IKE Field, IKE Office Pro, and IKE PoleForeman. It includes any installed software or mobile apps we provide for you to access those offerings and any Devices we lease to you.

As you read these Terms, please note the defined terms and their meanings in Section 16.

1. AGREEMENT
   1. Your rights to access and use the Platform are determined by your Subscription.
   2. The details of your Subscription are set out in your Order Document.
   3. Your Order Document makes an Agreement between you and us, incorporating these Terms.
   4. You are taken to accept the Order Document as soon as you sign and return a copy to us or send us a purchase order quoting our reference number from the Order Document, or otherwise, confirm your acceptance by email or any other written format.
   5. If an Order Document includes a place for us to sign, the Order Document will not take effect until you have accepted and we have signed.
   6. If you have not accepted an Order Document within 30 days of receiving it, the Order Document will not take effect until you have accepted it and we have confirmed to you in writing that the Order Document is still valid.
   7. If and to the extent we allow you access to the Platform without a current Subscription, or after your Subscription has expired, you must comply with these Terms, but we have no obligations or liability to you in relation to that access or usage, and we can withdraw your access at any time without notice.
   8. We can amend these Terms from time to time by publishing an updated version on our Website.  For any existing Subscription, the amended Terms take effect at the next renewal date that falls at least 30 days after the amended Terms are published on our Website.  If your Subscription expires but you still have access to the Platform, the amended Terms take effect as soon as they are published on our Website.
   9. If you are an individual seeking access to the Platform for the purposes of a company or other organization, you enter into the Agreement on behalf of the organization, and you warrant that you have authority to do so, but all other references in the Agreement to “you” and “your” are references to the organization and not to you personally.
2. YOUR SUBSCRIPTION TO THE PLATFORM
   1. During your Subscription Term, we will provide you with access to the Subscribed Products as outlined in the Order Document. When your Subscription first starts, you may need to wait up to 5 business days before your Subscribed Products are activated.
   2. Unless stated otherwise in the Order Document, your Subscription is for an initial term of 12 months, starting as soon as the Order Document takes effect.
   3. Your Subscription renews automatically at the end of the initial term and each renewal term unless we give you notice at least 30 days before the next renewal date or you give us notice at least five days before the next renewal date.
   4. We can update the subscription fees for the next Subscription Term by giving you notice at least 30 days before the renewal date. Otherwise, the subscription will renew at the current ikeGPS market pricing at the renewal subscription date.
   5. For each Subscribed Product, we may limit your access or usage to the licensed volumes (e.g., users, IKE devices, transactions, collections) provided in your Order Document. If you exceed those licensed volumes, we may charge you additional fees. Unless stated otherwise in the Order Document, those additional fees will be based on our standard list prices at the relevant time.
   6. If your Subscription includes training sessions:

      2.6.1  We will provide you with that training at mutually convenient times. We will make reasonable efforts to accommodate the times you request, subject to our pre-existing commitments.

      2.6.2  In addition to any training fees, you agree to pay for our reasonable out-of-pocket travel, accommodation, and venue hire costs incurred in providing that training. We will provide you an estimate of these costs for your approval before we incur them. Our obligation to provide the training is subject to you approving that estimate. However, no additional costs are chargeable for any training we provide remotely.

      2.6.3  If you fail to attend or cancel a pre-agreed session on less than two business days’ notice, we are not required to provide a replacement session, and you are not entitled to any refund of amounts paid for the training session.  You must also pay any reasonable expenses that we have incurred within the estimate you approved for the training, for example, non-refundable travel expenses and venue fees.

   7. If your Order Document indicates your Subscription is a trial or evaluation, then despite anything else in the Agreement, we have no obligations or liability in respect of any events or circumstances arising out of or in connection with your use of the Subscribed Product during the Subscription Term, except under clauses 10 and 11.
   8. If your Subscription is not renewed, it will expire at the end of the Subscription Term. If the Agreement is terminated, your Subscription will end immediately. In either case, when your Subscription ends, you must cease all use of the Subscribed Products.
   9. You agree that your purchase of any Subscription is not contingent on the delivery of any future functionality or features, or made in reliance on any announcement, commentary or discussion from us regarding future functionality or features.
3. YOUR USE OF THE PLATFORM
   1. Unless stated otherwise in your Order Document, you must ensure your Users use the Platform solely for your internal business purposes and those of your Approved Affiliates.
   2. For any Subscribed Product where your Subscription is based on a number of Seats:

      3.2.1  You must ensure that the total number of active user profiles configured for that Subscribed Product does not exceed the number of Seats provided by your Subscription.

      3.2.2  A user profile is ‘active’ if it can be used to log in to the Subscribed Product, whether or not it is actually used.  However, ‘view only’ user profiles (that cannot edit or download data) do not count as ‘active’, and do not require a Seat.

      3.2.3  You must ensure each individual User has their own user profile for the Subscribed Product, and that you and your Approved Affiliates do not share user profiles.

      3.2.4  If one or more individuals share a user profile, you agree to purchase and pay for an increase in your Subscription to a level sufficient to provide separate Seats for each of those individuals.

      3.2.5  For each Seat, you can swap one User with another no more than once per calendar month by deactivating the outgoing User’s profile and activating the incoming User’s profile.

      3.2.6  If you do this more than once per month for any Seat, you must purchase and pay for an additional Seat for the remainder of the Subscription Term at our then-current list pricing as set by us.

   3. Where your Subscription is based on a number of transactions or objects processed or stored in the Platform, unless stated otherwise in your Order Document, we may bill you monthly in arrears for those transactions or objects at the rates stated in your Order Document.
   4. You must use reasonable efforts to prevent unauthorized access to or use of the Platform. You must promptly notify us on becoming aware of any unauthorized access or use.
   5. You must not reverse engineer, copy or modify any part of the Platform or Documentation. You must not access the Platform or Documentation in order to build any commercially available software product or software service.
   6. You must not sublicense, resell, rent, lease, transfer, assign, timeshare, offer in a service bureau, or otherwise make the Platform or Documentation available to any third party except as expressly authorized by the terms of the Agreement.
   7. You must not:

      3.7.1  use the Platform in violation of any Law;

      3.7.2  use the Platform to send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;

      3.7.3  use the Platform to send or store malicious code of any kind;

      3.7.4  knowingly interfere with or disrupt the operation of the Platform;

      3.7.5  circumvent, or attempt to circumvent, any access controls on the Platform or its related systems or networks.

   8. You are responsible under the Agreement for all of your Associates and Users. For the purposes of the Agreement, their acts and omissions will be treated as your own.
   9. The Platform may provide you with the access to services or content that the Platform specifically identifies as being provided by one or more third parties (“Third Party Services”). This includes any RTK network providing positioning corrections to a Device. We have no obligations or liability in relation to Third Party Services, and any warranties given under the Agreement do not apply to Third Party Services. You may be required to accept additional terms in order to access Third Party Services through the Platform. Once accepted, those additional terms will apply to the Third Party Services alongside the terms of the Agreement and will prevail over the Agreement in relation to the relevant Third Party Services.
4. PRODUCT WARRANTY
   1. We warrant that during the Subscription Term the Subscribed Products will comply with the Documentation in all material respects, and we will not make any changes to the Documentation that materially decrease the functionality or performance expected of the Subscribed Products.  For this purpose, materiality will be determined by reference to how each Subscribed Product is used by customers generally, not your particular use of any Subscribed Product.
   2. If you notify us of a breach of the warranty in Section 4.1, we will correct the breach at our own cost within 120 days of you providing us with all the information that we reasonably require from you in order to isolate and diagnose the underlying cause.
   3. A breach of the warranty in Section 4.1 will not give rise to any other rights or remedies unless you notify us of the breach in accordance with Section 4.2 and we fail to correct the breach within the timeframes required by that Section.  If our failure to correct the breach within those timeframes significantly reduces the benefit of the Subscribed Product to you, then you can terminate your Subscription for that Subscribed Product by giving notice to us, in which case we will refund a proportionate share of any fees you have prepaid for the current Subscription Term in respect of that Subscribed Product, reflecting the unused portion of the Subscription Term remaining as at the effective date of termination.  This is your sole and exclusive remedy for any and all breaches of Sections 4.1 and/or 4.2.
   4. We give no warranties other than those set out in the Agreement. To the maximum extent permitted by law, we specifically disclaim all other warranties, including any warranties of merchantability or fitness for a particular use or purpose, whether arising by law, custom, usage in trade, or course of dealing. We do not warrant that the Subscribed Products will be error-free or operate without interruption.
5. SERVICES ENGAGEMENTS
   1. This Section 5 applies where an Order Document includes a Services Engagement.  Our obligations for each Services Engagement are limited to those set out in this Section 5.
   2. We will make reasonable efforts to carry out each Services Engagement as described in the Order Document.  We will do this using appropriately qualified and experienced personnel, and applying reasonable skill and care.
   3. Any stated timeframes for a Services Engagement are indicative only.  We will make reasonable efforts to meet those timeframes, but will not be held responsible for any delays beyond our reasonable control.
   4. You must provide us in a timely manner with all resources and inputs identified as your responsibility in the Order Document, and all other co-operation, information and decisions we reasonably request in order to enable us to carry out the Services Engagement.
   5. Where we make deliverables from a Services Engagement available to you for review or testing, you must carry out your review or testing within the period provided for in the Order Document, or if no applicable period is specified, within 5 business days.  Unless you notify us of one or more defects, errors or omissions within that period, you will be taken to have approved and accepted those deliverables.  We are not required to correct any defect, error or omission that has not been notified to us by the end of that period.
   6. Unless stated otherwise in the Order Document, the Services Engagement will be charged at our then-current standard hourly or daily rates, and invoiced monthly in arrears.
   7. Where the Order Document provides a fixed price for the Services Engagement, then unless stated otherwise in the Order Document, the fixed price is payable before we start work.
   8. Where the Order Document provides an estimate of the charges required to complete the Services Engagement, we will not, and are not obliged to, carry out any work exceeding 120% of the estimate.  If we have reason to expect the Services Engagement will require work exceeding 120% of the estimate, we will notify you and provide you with an updated estimate for your approval.  If you fail to approve the updated estimate within 5 business days, we may terminate the Services Engagement by giving you notice.
   9. Unless stated otherwise in the Order Document, the timeframes and estimate or fixed price for the Services Engagement do not allow for any additional time or effort required due to factors that we could not reasonably have anticipated and allowed for when we last set the timeframes and estimate or fixed price, including any failure or delay by you in meeting your responsibilities under Section 5.4.  We will be entitled to an extension of time and/or an increase in the estimate or fixed price for the Services Engagement as reasonably required to accommodate or offset the impact of those factors.
   10. We will not unreasonably refuse any request for an increase to the scope of a Services Engagement, subject to you approving an extension of time and/or increase in the estimate or fixed price for the Services Engagement allowing for the additional time and/or effort reasonably required to deliver the increased scope.  However, we may refuse any request that would extend the total time and/or effort required for the Services Engagement beyond any point exceeding 150% of what was anticipated as at the date of the Order Document.
   11. Our total aggregate liability to you arising under or in connection with any Services Engagement will not exceed an amount equal to 125% of the total charges paid and/or payable for that Services Engagement.
6. FEES AND PAYMENT
   1. You must pay the fees specified in the Order Document.
   2. Unless stated otherwise in the Order Document, the subscription fees for each Subscription Period are payable in advance and may be invoiced at any time from the date 30 days before the start of the Subscription Period.
   3. Unless stated otherwise in the Order Document, amounts invoiced to you in accordance with the Agreement are due 30 days after receipt of the invoice, except for amounts subject to a reasonable and good faith dispute, provided you have notified us before the due date stating the disputed amount and providing reasonable details of the matter in dispute.
   4. We will email invoices to you at the email address provided in the Order Document or any replacement email address that you subsequently notify to us. You will be deemed to have received the invoice the next business day after sending.
   5. Unless stated otherwise in the Order Document, all fees are quoted and payable in US Dollars. Except as expressly stated otherwise in the Agreement, your Subscription is non-cancellable, and all payments are non-refundable.
   6. Unless expressly stated otherwise in an Order Document, you are responsible for all Taxes. If we have a legal obligation to pay or collect any Taxes, then we can invoice, and you must pay those Taxes in addition to and on the same terms as the corresponding fees. If you have a legal obligation to withhold or deduct any Taxes from amounts payable to us under these Terms, you must pay us any additional amount needed to ensure we receive the same amount we would receive in the absence of the withholding or deduction.
   7. We confirm that, to the best of our knowledge as at the date of each Order Document, we do not have a legal obligation to pay or collect any Taxes in relation to services purchased under that Order Document, except for the Taxes identified in that Order Document.
   8. If you fail to pay an amount due under the Agreement by the applicable due date, you must pay us interest on the overdue amount at a rate of 1.5% per month (or, if lower, the maximum rate allowable under applicable law), calculated daily and compounding monthly, from the due date up to but excluding the date of payment.
   9. Except for amounts subject to a reasonable and good faith dispute, if a payment remains unpaid 45 days after receipt of the invoice and we have provided you with at least 30 days’ notice, we may suspend your access to the Platform without any liability to you. We will lift the suspension once all overdue amounts have been paid in full.
7. RIGHTS IN THE PLATFORM, DOCUMENTS, AND DATA
   1. We can modify the Platform at any time, subject only to the restrictions expressly set out in the Agreement.
   2. As between you and us, we retain ownership of all rights in the Platform and Documentation. You must not use the Platform or Documentation except as expressly authorized by the terms of the Agreement.
   3. If we create any enhancements or additions to the Platform or Documentation, or any other software configuration or custom documentation, either at your request or our own initiative, then unless we specifically agree otherwise we retain ownership of all rights in that work, and we are free to re-use that work for any purpose without restriction so long as we remove any content you have provided us that identifies you or is unique to your business or assets.
   4. If you provide us with Feedback, we are free to re-use it and commercialize it without restriction and without the need for any further permission or payment. You must ensure your Feedback is not subject to any third-party rights that might require such a permission or payment. You are not required to provide Feedback, and we are not required to use it.
   5. You retain ownership of all rights in your Data. We and our Suppliers can Process your Data in order to provide you with the Subscribed Products during the Subscription Term. We can also Process your Data for the purpose of developing our existing products and services and creating new ones. You must ensure you have all rights, licenses, and consents needed in relation to your Data to ensure that our Processing, as permitted by the Agreement, does not violate any Law or third-party rights or otherwise expose us to any legal liability.
   6. You must ensure that your Data does not include any personal information about an identifiable individual other than the names and business contact details of your Users.
   7. You must indemnify us against all Claims, Costs, and Liabilities arising from any claim or action brought by a third party alleging that our Processing of your Data as permitted by the Agreement violates any Law or third-party rights or otherwise exposes us to any legal liability. We will take reasonable steps to mitigate our liability for any such claim or action, and you will not be liable under this indemnity to the extent the amounts claimed by us are due to our negligent mismanagement of the claim or action or due to us agreeing a settlement that is manifestly excessive in light of the merits of the claim or action and any other relevant circumstances.
   8. We may use your name and logo in customer lists, on earnings calls and releases, and on our website, but only to identify you as an entity that uses the Platform. If requested by you, we will remove your name and logo from our public website.
8. LEASED DEVICES
   1. This Section 8 applies if your Subscription includes the lease of one or more Devices.
   2. The Devices are leased to you on the terms of the Agreement and remain our property.
   3. We will make arrangements for the Devices to be shipped to you at the delivery location stated in the Order Document. We will make reasonable efforts to ensure shipping is arranged in a timely fashion with a view to meeting any delivery timeframes stated in the Order Document. However, we will not be responsible for any delays beyond our direct control, including delays by our logistics agents or carriers and any border-related delays.
   4. Unless expressly stated otherwise in an Order Document, you are responsible for all freight, insurance costs, tariffs, and customs charges incurred in shipping the Devices to you. We can invoice, and you must pay those amounts in addition to and on the same terms as the fees for each Device. The insurance costs include the cost of insuring each Device while in transit for its full replacement value.
   5. You must use the Devices solely to collect data in accordance with the Order Document. If you use any Devices to collect data outside the scope agreed in the Order Document, we may charge whatever additional fees we consider necessary to reflect the commercial value of the data collected. We will act in good faith in determining those fees.
   6. All risk in the Devices is with you, starting from the time they are delivered to you and ending when they have been returned to us. If any Device is lost, stolen, damaged, or destroyed during that period, you must pay us the replacement fee specified in the Order Document, or if none is specified, our then-current retail price for the relevant Device.
   7. You must notify us within 24 hours if any Device is lost, stolen, damaged, or destroyed. If a Device is damaged or malfunctioning, you must promptly return it to us for repair. You must not in any circumstances attempt to repair a Device yourself or have a third party repair it.
   8. You must return all Devices to us within two business days following the end of the Subscription Term. You are responsible for all costs of return, including freight, duties, customs charges, tariffs, and insurance.
   9. You are responsible for saving and backing up any data collected by each Device before returning the Device to us. On return, we will delete all data from the Device and perform a factory reset of the Device.
   10. If you fail to return a Device to us within seven days of the end of the Subscription Term, you will be taken to have renewed the Subscription Term for a further period of one year at our then-current standard list pricing as set by us. If we terminate the Agreement under Section 13 and you fail to return the Device to us within seven days, we can charge you the full price for a new replacement for the Device at our then-current list price as set by us.
   11. You are responsible for ensuring that each Device is used safely and in compliance with all applicable Laws. You must indemnify us against all Claims, Costs, and Liabilities arising from any claim or action brought by a third party in respect of any property damage, personal injury, or death arising in connection with the use of any Device. We will take reasonable steps to mitigate our liability for any such claim or action, and you will not be liable under this indemnity to the extent the amounts claimed by us are due to our negligent mismanagement of the claim or action or due to us agreeing a settlement that is manifestly excessive in light of the merits of the claim or action and any other relevant circumstances.
9. INDEMNITY FOR THIRD-PARTY IP CLAIMS
   1. We will indemnify you against all Claims, Costs, and Liabilities arising from any Third Party IP Claim.
   2. We will have no liability for a Third Party IP Claim unless you notify us promptly on becoming aware of the Third Party IP Claim, give us a reasonable opportunity to take over the conduct of the Third Party IP Claim, and refrain from making any admission or settlement in relation to the Third Party IP Claim except where we fail to take over accordingly.
   3. If we take over the conduct of the Third Party IP Claim, you must provide all assistance and co-operation reasonably requested by us for the purposes of any related negotiations or litigation, in which case we will compensate you for your reasonable internal staff time and external expenses incurred for that purpose.
   4. If we take over the conduct of the Third Party IP Claim, you will be entitled to be represented at and consulted on all related negotiations and litigation, and unless you agree otherwise, we will have no authority to settle on terms other than a full and unconditional release for you.
   5. The indemnity in Section 9.1 will not apply to the extent that the infringement alleged in the Third Party IP Claim is attributable to:

      9.5.1  your Data;

      9.5.2  your breach of the Agreement;

      9.5.3  any use, copying, or modification by you or your Associates of the Platform or Documentation in a manner not authorized by the Agreement;

      9.5.4  our following any specifications or directions provided by you, but only to the extent the infringement is an unavoidable result of following those specifications or directions.

   6. If a Subscribed Product is subject to a Third Party IP Claim, and we reasonably consider that we will not be able to resolve the Third Party IP Claim by modifying the Subscribed Product or acquiring or licensing rights from a third party, or we reasonably consider that this cannot be achieved on commercially reasonable terms for a commercially reasonable cost, then we can terminate the Agreement by giving you not less than 30 days’ notice.
   7. If we terminate the Agreement under Section 9.6, we will refund a proportionate share of any fees you have prepaid for the current Subscription Term in respect of the Subscribed Product, reflecting the unused portion of the Subscription Term remaining as at the effective date of termination. All amounts payable under this Section 9.7 are subject to the limitation of liability in Section 12.2.
   8. The remedies provided in this Section 9 are your sole remedy for any cause of action based on an allegation that the Platform infringes third-party intellectual property rights.
10. CONFIDENTIALITY
    1. Neither party will disclose the other party’s Confidential Information, and neither party will use the other party’s Confidential Information for any purpose other than to perform its obligations or take the intended benefit of its rights under the Agreement, in each case except where the Agreement expressly permits otherwise or with the other party’s prior consent.
    2. Section 10.1 does not prohibit any party from disclosing information to its Contractors and Personnel in order for them to assist that party to perform its obligations and/or take the intended benefit of its rights under the Agreement, but only where the recipients are subject to written confidentiality obligations no less restrictive than this clause 9.
    3. Section 10.1 does not prohibit any party from disclosing information to a bona fide potential purchaser, investor, or lender in a proposed transaction involving or affecting a significant portion of the assets or shares of that party or its Affiliates as part of a due diligence exercise for that transaction, provided the potential purchaser, investor or lender signs a confidentiality agreement no less restrictive than this clause 9.
    4. Section 10.1 does not prohibit disclosure required by statute or regulations or by the rules of any registered securities exchange on which the securities of a party are listed, provided the disclosing party gives the other party notice of the requirement as soon as reasonably practicable (except where prohibited by Law).
11. PROTECTING YOUR DATA
    1. We will implement and maintain reasonable technical and organizational safeguards to at least the level of ‘good practice’ generally expected from a skilled and experienced provider of services similar to the Platform, to protect your Data against Data Breach and to protect against vulnerabilities in our systems that could be leveraged to compromise your systems.
    2. Except as required by Law, we will not use or disclose any personal information contained in your Data except for the purpose of operating the Platform for your use. We will ensure that all of our Suppliers and Personnel who Process your Data are subject to contractual restrictions on the Processing of your Data no less strict than those in the Agreement.
    3. If we become aware of a Data Breach, we will notify you as soon as reasonably practicable, take all reasonably practicable steps to halt the Data Breach, and cooperate with your investigation of the Data Breach as you reasonably consider necessary to enable you to meet your obligations under applicable Laws.
    4. During the 30 days after the end of the Subscription Term, on request from you, we will allow limited ongoing access to the Platform solely to extract your Data. During that period, we will use reasonable efforts to provide you with any assistance that you request for that purpose, subject to you agreeing to pay for that assistance at our then-current standard hourly rates.
12. LIABILITY
    1. Where your Approved Affiliates suffer loss or damage as a result of our breach of the Agreement, the loss or damage will be recoverable to the same extent as if those Approved Affiliates were part of the same legal entity as you.
    2. Our total aggregate liability to you under or in connection with the Agreement for all events that occur in any Contract Year will not exceed the sum of all fees paid under the Agreement for that Contract Year.
    3. Section 12.2 does not apply to or take into account any liability we may have for Information Security Breaches. Our total aggregate liability to you, under or in connection with the Agreement, for all Information Security Breaches that occur in any Contract Year will not exceed three times the sum of all fees paid under the Agreement for that Contract Year.
    4. For the purposes of Sections 12.2 and 12.3, the first Contract Year is also deemed to include the period before the start of that Contract Year, and the last Contract Year is also deemed to include the period after the end of that Contract Year.
    5. We will not be liable under or in connection with the Agreement or any loss or damage arising from reliance on data collected or processed through the Platform, including where that data is affected by an error or omission introduced by the Platform.
    6. Neither party has any liability to the other under or in connection with the Agreement for any loss of profits, anticipated savings, business opportunity, or goodwill or for any indirect, consequential, special, incidental, or punitive losses or damages. However, Claims Costs and Liabilities arising from Information Security Breaches will not be considered indirect, special, consequential, or incidental for the purposes of this Section 12.6.
    7. The limitations and exclusions in this Section 12 do not apply to:

       12.7.1  any liability that cannot lawfully be limited or excluded by contract;

       12.7.2  any liability either Party may have for fraud, deceit, or Willful Default;

       12.7.3  any liability either Party may have under any intellectual property Laws for infringement of intellectual property rights;

       12.7.4  any liability you may have under the indemnity in Section 7.7;

       12.7.5  any liability we may have under the indemnity in Section 9.1;

       12.7.6  any fees or other amounts the Agreement expressly requires you to pay to us.

    8. Otherwise, the limitations and exclusions in this Section 12 apply to all liability arising under or in connection with the Agreement, whether in contract, tort (including negligence), equity, or under any other Law or other cause of action, regardless of whether this might result in a failure of the essential purpose of any other provision of the Agreement, and regardless of whether the party seeking to rely on the limitation or exclusion caused, or was advised of the possibility of, the relevant loss or damage.
    9. You must indemnify us against all Claims, Costs, and Liabilities arising from any claim or action brought by a third party arising out of or in connection with your use of any Subscribed Product, except to the extent due to our breach of the Agreement. We will take reasonable steps to mitigate our liability for any such claim or action, and you will not be liable under this indemnity to the extent the amounts claimed by us are due to our negligent mismanagement of the claim or action or due to us agreeing a settlement that is manifestly excessive in light of the merits of the claim or action and any other relevant circumstances.
13. TERMINATION
    1. We can terminate any Subscription without cause, and without any liability to you, by giving you not less than 180 days’ notice.  If we terminate a Subscription under this Section 13.1, we will refund to you a proportionate share of any fees you have prepaid for the current Subscription Term in respect of the Subscribed Product, reflecting the unused portion of the Subscription Term remaining as at the effective date of termination
    2. Either party can terminate the Agreement by giving notice to the other party if the other party has committed a material breach, and the breach either is not capable of being cured or remains uncured 30 days after the terminating party gives notice outlining the breach and warning that termination may follow if it is not remedied.
    3. Either party can terminate the Agreement by giving notice to the other party if the other party undergoes an Insolvency Event.
    4. Each party agrees that its rights to terminate the Agreement (including for breach, repudiation, mistake, and misrepresentation) are limited to those expressly set out in the Agreement. Each party waives all other rights of termination and cancellation, and to the extent, such rights are not capable of being waived, undertakes not to exercise them.
    5. If you terminate the Agreement under this Section 13, we will refund you a proportionate share of any fees that you have prepaid for the current Subscription Term, reflecting the unused portion of the Subscription Term as at the effective date of termination.
    6. Sections 1.7, 2.4, 3.5, 3.6, 3.7, 3.8, 3.9, 4.3, 4.4, 2.9, 6.8, 7, 8.8, 8.10, 8.11, 9, 10, 11, 12, 13, 14, 15, 16 and 17 will survive any expiry or termination of the Agreement, along with any obligations and liabilities accrued prior to the effective date of expiry or termination.
    7. Expiry or termination of the Agreement will not affect your obligation to pay any fees or charges incurred before the effective date of the expiry or termination. If not already invoiced, we can invoice those amounts at any time after expiry or termination.
14. NOTICES
    1. Any notice, consent, approval, agreement, request, or other communication given by a Party for the purposes of the Agreement (“Notice”) will be of no effect unless given in writing.
    2. If you give Notice exercising a right or power under the Agreement, the Notice will be of no effect unless addressed (or copied) to legalnotices@ikegps.com.
    3. Notices may be delivered in person (including by courier), by pre-paid post, or by email. A Notice by post is deemed received only at the time of actual delivery to the recipient’s address. A Notice by email is deemed received no later than one business day after the email is dispatched from the sender’s email server unless, within that time, the sender’s email server receives an automated response advising that the message has not been delivered.
15. OTHER MATTERS
    1. Each party warrants that it has the authority to enter into the Agreement.
    2. Each party warrants that in carrying out its activities in connection with the Agreement, it will comply with all Laws that apply to it in connection with those activities.
    3. Neither party will be liable for any failure or delay in performance under the Agreement for causes beyond that party’s reasonable control, except to the extent that party could have avoided, mitigated, or overcome the impact through the application of reasonable foresight, planning, diligence, skill, and care.
    4. In entering into the Agreement, and throughout the term of the Agreement, you warrant that you are not a Sanctioned Entity. You must not allow use of the Platform by any Sanctioned Entity. If we reasonably determined that you have breached this Section 15.4, we can terminate the Agreement with immediate effect by giving you notice.
    5. Except where the Agreement expressly states otherwise, no party may assign, encumber or otherwise dispose of any rights under the Agreement without the other party’s prior consent, not to be unreasonably withheld. We may assign the Agreement without your consent as part of a merger, acquisition, a corporate reorganization, or a sale of all or substantially all of our assets, so long as the assignee agrees to be bound by the terms of the Agreement. We may assign or grant security over any receivables owed by you under the Agreement without your consent.
    6. Nothing in the Agreement gives rise to any fiduciary obligations, or creates a legal relationship of partnership or joint venture, or gives any party any right to act on behalf of or bind the other party in any way except as expressly permitted by the Agreement.
    7. No provision of the Agreement is enforceable by any person other than you and us.
    8. If a party fails to exercise, or delays or holds off exercising, a power or right under the Agreement, that is not a waiver. A single or partial exercise of a power or right does not preclude further exercises of the same or any other power or right.
    9. No amendment to the Agreement is effective unless signed by both parties. No waiver of any provision of the Agreement is effective unless signed by the waiving party.
    10. The Agreement is the entire understanding between you and us concerning your access to and use of the Platform and supersedes all prior discussions, proposals, representations, and understandings written or oral, relating to that subject matter. We will not be bound by any other terms put forward by you, including any standard terms of trade references in your email correspondence or any purchase order.
    11. By agreeing to purchase a Subscription for a Subscribed Product, you are giving up any perpetual licenses that you might hold for any predecessor of that Subscribed Product.  You agree those licenses are revoked from the date your Subscription starts.
    12. If any part of the Agreement is held by any court or tribunal of competent jurisdiction to be illegal, void, or unenforceable, this will not affect the remainder of the Agreement.
    13. The Agreement is governed by the laws of the State of Colorado, without regard to its conflict of laws provisions. Each party submits to the non-exclusive jurisdiction of the state and federal courts in Denver, Colorado, USA, to hear and determine any disputes or proceedings arising out of or in any way connected with the Agreement. You agree you cannot bring any claim or proceedings against us in any other court.
    14. Any controversy or claim arising out of or in any way connected with the Agreement will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration will be Denver, Colorado. The arbitration will be conducted by a single arbitrator. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Nothing in this Section will prevent either party from obtaining interim relief from a court of competent jurisdiction.
    15. Each party knowingly, voluntarily, and irrevocably waives any right to trial by jury of any issue, claim or dispute arising from or in any way relating to the Agreement or any related document to the fullest extent permitted by law. Each party confirms that no representative of the other party has represented that the other party would not, in the event of litigation, seek to enforce this waiver. Each party confirms that it understands the implications of this waiver after having the opportunity to consult with legal counsel. Each party acknowledges that the other party has been induced to enter into the Agreement by, among other things, the mutual waivers and confirmations in this Section.
    16. The Order Document may be executed in any number of counterparts, including scanned and emailed copies. So long as each party has received a counterpart or counterparts carrying the signatures of each of the other parties, the counterparts together will constitute a binding and enforceable agreement between the parties.
16. DEFINED TERMS

    In the Agreement, unless the context requires otherwise:

    “Agreement” means an Order Document together with these Terms. If and to the extent we allow you access to the Platform without a current Subscription or after your Subscription has expired, the Agreement consists solely of these Terms.

    “Affiliate” of a party means any entity controlled by, controlling, or under common control with that party, whether directly or through a chain of one or more entities where each successive entity in the chain controls the next. For this purpose, “control” of an entity means: (i) the ownership of more than 50% of the voting shares or equivalent interests in the entity; (ii) the right or power, directly or indirectly, to elect or remove directors of that entity; or (iii) the right or power to control the management of that entity.

    “Approved Affiliates”  means those of your Affiliates identified in the Order Document as being permitted to use the Subscribed Products, but only while they are your Affiliate.

    “Associates” of an entity means that entity’s Affiliates, together with all Suppliers, Contractors, and Personnel of that entity and/or its Affiliates.

    “Claims Costs and Liabilities” in relation to any investigation or enforcement action by a regulator or any third party claim or proceeding (in each case, an “Action”) means:

    • out-of-pocket costs reasonably incurred in responding to, defending, and/or settling the Action, including reasonable legal fees and court costs;
    • the amount of any settlement payments and/or reasonable direct costs of complying with any settlement undertakings, except the extent these are manifestly excessive in light of the circumstances, including the merits and likely costs of defending the Action;
    • amounts awarded in relation to the Action by way of damages, restitution, or other compensation by an arbitrator, court, or other tribunal of competent jurisdiction; and
    • any fines and penalties lawfully imposed as a result of the Action.

    “Confidential Information” of a party (“Owner”) means any information in the possession or control of the other party (“Holder”) or its Associates that was first disclosed to the Holder or its Associates by or on behalf of the Owner, or was first acquired by the Holder or its Associates through an inspection or evaluation of any premises, facilities, documents, systems or other assets owned or controlled by the Owner, or is derived from any of the foregoing. However:

    • each Order Document is the Confidential Information of both parties;
    • our Platform and Documentation are our Confidential Information, not yours;
    • your Data is your Confidential Information, not ours; and
    • despite the above, Confidential Information excludes anything the Holder can show:
      • has become public other than through a breach of the Agreement by the Holder;
      • was lawfully acquired by the Holder or its Associates, entirely independently of their activities in connection with the Agreement; and/or
      • has been independently developed by the Holder or its Associates without reference to the Owner’s Confidential Information and without breaching any other obligation of confidence owed to the Owner or its Associates.

    “Contractor” referring to your Contractors, means any service provider or supplier engaged, either directly by you or through a chain of service providers or suppliers ending with you, to provide you with services that make use of the Platform.

    “Contract Year” means each successive period of 12 months, commencing at the start of the first Subscription Term and each 12-month anniversary thereafter.

    “Data” or “Your Data” means data that you or your Authorized Users have uploaded to the Platform, together with any outputs generated by the Platform from that uploaded data.

    “Data Breach” means any incident involving unauthorized Processing of your Data.

    “Device” means an IKE hardware device loaned to you as part of your Subscription.

    “Documentation” means the standard user documentation and technical documentation for the Platform, as updated by us from time to time and made available for viewing or download on the Platform.

    “Feedback” means details of proposed changes or additions to the Platform or Documentation, whether in the form of suggestions, designs, or otherwise.

    “Information Security Breach” means a breach of Section 10 or Section 11.

    “Insolvency Event” in relation to an entity means that the entity: ceases or threatens to cease all or substantially all of its business; is, or is deemed to be, insolvent or bankrupt; has a receiver, liquidator, administrator, bankruptcy trustee, statutory manager or similar officer appointed over all or any substantial portion of its property; makes an assignment for the benefit of, or makes any arrangement or composition with, its creditors; passes any resolution or is the subject of proceedings, for its amalgamation with any other entity, except for the purposes of bona fide solvent restructuring; and/or is subject to anything analogous to one or more of the foregoing under the laws of any jurisdiction.

    “Law” means all applicable statutes, regulations, and bylaws and all mandatory codes, rules, and orders promulgated under them in each relevant jurisdiction.

    “Order Document” means a document that: (i) sets out the details of a subscription to one or more components of the Platform, and/or any one-off services that we are to provide to you to facilitate your use of the Platform; (ii) includes or references these Terms; and (iii) has been accepted by you in accordance with clause 1.4 of these Terms.

    “Personnel” means, in respect of an entity, any individual who is a director, officer, employee, contracted staff member, or other worker of that entity or of that entity’s Contractors, Suppliers, or agents. This does not mean your Personnel are also our Personnel or vice versa.

    “Platform” means the software services that we host and make available for customers to use over the internet, including any mobile apps or other installed software that we provide as a means for customers to access those hosted services. The Platform also includes any Devices leased to you as part of your Subscription.

    “Processing” includes storing, using, copying, modifying, transmitting, distributing, and deleting, and “Process” has a corresponding meaning.

    “Seat” means an entitlement to a single active user profile in the Platform. For example, if your Subscription provides for 20 users, that means 20 Seats.  A user profile is ‘active’ if at can be used to log in to a Subscribed Product, regardless of whether anyone is actually logged in at any give time.

    “Services Engagement” means an engagement outlined in an Order Document, requiring us to provide you with one-off services relating to a Subscribed Product, including any professional services, consulting services and/or technical services.

    “Subscribed Products” means those components of our Platform covered by your Subscription, as stated in the Order Document.

    “Subscription” means the subscription purchased under the Order Document.

    “Subscription Term” means the term of your Subscription, as determined in accordance with Section 2 and the relevant Order Document.

    “Supplier” referring to our Suppliers, means any service provider or supplier engaged, either directly by us or through a chain of service providers or suppliers ending with us, to provide services that are used to develop, host, support, maintain or manage the Platform.

    “Third Party IP Claim” means a claim by a third party (excluding any of your Associates) alleging that your use of the Platform or Documentation infringes intellectual property rights that the third party is entitled to enforce.

    “User” means any person using an account or user profile that you have created in the Platform or an account or user profile that we have created in the Platform at your request.

    “Website” means our company website, which as at the date of these Terms, is located at www.ikegps.com. To avoid doubt, this includes any page on that website accessible through a series of hyperlinks starting at the home page and not only the home page itself.

    “Willful Default” means a breach of the Agreement committed by a party knowing it to be a breach or being reckless as to whether that is the case.

17. INTERPRETATION
    1. In the construction of the Agreement, unless the context requires otherwise:

       17.1.1  use the Platform in violation of any Law;

       17.1.2  use the Platform to send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;

       17.1.3  use the Platform to send or store malicious code of any kind;

       17.1.4  knowingly interfere with or disrupt the operation of the Platform;

       17.1.5  circumvent, or attempt to circumvent, any access controls on the Platform or its related systems or networks.

       17.1.6  use the Platform in violation of any Law;

       17.1.7  use the Platform to send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;

       17.1.8  use the Platform to send or store malicious code of any kind;

       17.1.9  knowingly interfere with or disrupt the operation of the Platform;

       17.1.10  circumvent, or attempt to circumvent, any access controls on the Platform or its related systems or networks.

       17.1.11  knowingly interfere with or disrupt the operation of the Platform;

       17.1.12  circumvent, or attempt to circumvent, any access controls on the Platform or its related systems or networks.

    2. To the extent there is any conflict between these Terms and the Order Document, these Terms will prevail in each case except to the extent the Order Document specifically states that it modifies or overrides these Terms.

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View the previous Terms of Service from May 2018