This Agreement is between Customer and ImageSource, Inc. “Customer” means the entity on behalf of which this Agreement is accepted or, if that does not apply, the individual accepting this Agreement. “ImageSource” means the ImageSource, Inc., which owns or operates the ImageSource Products that Customer uses or accesses.
If you (the person accepting this Agreement) are accepting this Agreement on behalf of your employer or another entity, you agree that: (i) you have full legal authority to bind your employer or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your employer or such entity.
If you are accepting this Agreement using an email address from your employer or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your employer or that entity to these terms, and (iii) the word “you” or “Customer” in this Agreement will refer to your employer or that entity.
By clicking on the “Agree” (or similar button or checkbox) that is presented to you at the time of placing an Order, downloading Products, or by using or accessing the Products, you confirm you are bound by this Agreement. If you do not wish to be bound by this Agreement, do not click “Agree” (or similar button or checkbox), download the Products, or use or access the Products.
1. Overview
This Agreement applies to Customer’s Orders for Products and related Support Services. The terms of this Agreement apply to both Cloud Products and Software Products, although certain terms apply only to Cloud Products or Software Products, as specified below.
2. Use of Products
2.1. Permitted Use. Use of Products is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Products (“License Agreement”). Subject to the terms of any such License Agreement and this Agreement and during the applicable Subscription Term, ImageSource grants Customer a non-exclusive, worldwide right to use the Products and related Support Services for its and its Affiliates’ internal business purposes, in accordance with the Documentation and Customer’s Scope of Use.
2.2. Restrictions. Except to the extent otherwise expressly permitted by this Agreement, Customer must not (and must not permit anyone else to): (a) rent, lease, sell, distribute or sublicense the Products or (except for Affiliates) include them in a service bureau or outsourcing offering, (b) provide access to the Products to a third party, other than to Users, (c) charge its customers a specific fee for use of the Products, but Customer may charge an overall fee for its own offerings (of which the Products are ancillary), (d) use the Products to develop a similar or competing product or service, (e) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Products, (f) modify or create derivative works of the Products, (g) interfere with or circumvent Product usage limits or Scope of Use restrictions, (h) remove, obscure or modify in any way any proprietary or other notices or attributions in the Products, or (i) violate the Acceptable Use Policy.
2.4. Copyright and Trademark. ImageSource respects the rights of copyright and trademark holders. If Customer believe that any content in our Services violates Customer’s copyright, Customer should notify ImageSource in writing pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3) using the contact information provided below. If the notice complies with the requirements of the DMCA, ImageSource will promptly notify the alleged infringer that Customer has claimed ownership of the rights in this content and that ImageSource has complied with Customer’s takedown notice for the content. If Customer believes that your trademark rights have been infringed, Customer can submit a trademark infringement report to ImageSource using the contact information provided below. Trademark owners should make an effort to directly contact an offending third party before submitting a report to ImageSource. Please note that ImageSource is not in a position to adjudicate complicated trademark disputes between third parties. Therefore, ImageSource is not in a position to act on reports that require a complex legal analysis or factual investigation. In those instances, ImageSource encourages Customer to contact the third party directly to try and resolve the matter. Once a report is submitted, ImageSource will begin a brief investigation and will take action that it deems appropriate under the circumstances. If ImageSource decides to take down content in response to a report, ImageSource will provide Customer’s report and contact information to the affected party. Copyright or trademark infringement notices should be provided to ImageSource using the following contact information:
By email: image@imagesourceinc.com
By regular mail: 3003 Sunset Way SE, Tumwater, WA 98501, USA
3. Users
3.1. Responsibility. Customer may authorize Users to access and use the Products, in accordance with the License Agreement, if any, the Documentation and Customer’s Scope of Use. Customer is responsible for its Users’ compliance with this Agreement and any License Agreement and all activities of its Users, including Orders they may place, apps and Third Party-Products they enable, and how Users access and use Customer Data.
3.2. Login Credentials. Customer must ensure that each User keeps its login credentials confidential and must promptly notify ImageSource if it becomes aware of any unauthorized access to any User login credentials or other unauthorized access to or use of the Products.
3.3. Domain Ownership. Where a Cloud Product requires Customer to specify a domain (such as www.example.com) for the Cloud Product’s or a feature’s operation, ImageSource may verify that Customer or an Affiliate owns or controls that domain. ImageSource has no obligation to provide that Cloud Product or feature if ImageSource cannot verify that Customer or an Affiliate owns or controls the domain. Product administrators appointed by Customer may also take over management of accounts previously registered using an email address belonging to Customer’s domain, which become “managed accounts” (or similar term), as described in the Documentation.
3.4. Age Requirements. The Products are not intended for use by anyone under the age of eighteen (18). Customer is responsible for ensuring that all Users are at least eighteen (18) years old.
4. Cloud Products
This Section 4 only applies to Cloud Products.
4.1. Customer Data. ImageSource may process Customer Data to provide the Cloud Products and related Support Services in accordance with this Agreement.
4.2. Security Program. ImageSource has implemented and will maintain an information security program that uses appropriate physical, technical and organizational measures designed to protect Customer Data from unauthorized access, destruction, use, modification or disclosure, as described in its Security Measures. ImageSource will also maintain a compliance program that includes independent third-party audits and certifications, as described in its Security Measures.
4.3. Service Levels. Where applicable, service level commitments for the Cloud Products are set out in the Support Services Agreement, if any, between ImageSource and Customer.
4.4. Data Retrieval. The Documentation describes how Customer may retrieve its Customer Data from the Cloud Products.
4.5. Removals and Suspension. ImageSource has no obligation to monitor Customer Data. Nonetheless, if ImageSource becomes aware that: (a) Customer Data may violate Law, Section 2.2 (Restrictions), or the rights of others (including relating to a takedown request received following the guidelines specified in Section 2 above), or (b) Customer’s use of the Cloud Products threatens the security or operation of the Cloud Products, then ImageSource may: (i) limit access to, or remove, the relevant Customer Data, or (ii) suspend Customer’s or any User’s access to the relevant Cloud Products. ImageSource may also take any such measures where required by Law, or at the request of a governmental authority. When practicable, ImageSource will give Customer the opportunity to remedy the issue before taking any such measures.
5. Software Products
This Section 5 only applies to Software Products.
5.1. Modifications. ImageSource may provide some portions of the Software Products in source code form for Customer to use internally to create bug fixes, configurations or other modifications of the Software Products, as permitted in the License Agreement, if any, and the Documentation (“Modifications”). Customer must keep such source code secure (on computer devices and online repositories controlled by Customer), confidential, and only make it available to Customer’s employees who have a legitimate need to access and use the source code to create and maintain Modifications. Customer may only use Modifications with the Software Products, and only in accordance with the License Agreement, if any, this Agreement, the Documentation, and Customer’s Scope of Use. Customer must not distribute source code or Modifications to third parties. Customer must securely destroy the source code at the earliest of: (a) Customer no longer needing to use source code to create or maintain Modifications, (b) termination or non-renewal of a relevant Subscription Term, or (c) ImageSource’s request for any reason.
5.2. License Verification. Upon ImageSource’s written request, Customer will promptly confirm in writing whether its use of the Software Products is in compliance with the applicable License Agreement, if any, and Scope of Use. Unless otherwise permitted in the License Agreement, if any, and the Documentation, ImageSource or its authorized agents may audit Customer’s use of the Software Products no more than once every twelve (12) months to confirm compliance with Customer’s Scope of Use, provided ImageSource gives Customer reasonable advance notice and uses reasonable efforts to minimize disruption to Customer. If Customer exceeds its Scope of Use, ImageSource may invoice for that excess use, and Customer will pay ImageSource promptly after invoice receipt.
6. Customer Obligations
6.1. Disclosures and Rights. Customer must ensure it has made all disclosures and obtained all rights and consents necessary for ImageSource to use Customer Data and Customer Materials to provide the Cloud Products or Support Services.
6.2. Product Assessment. Customer is responsible for determining whether the Products meet Customer’s requirements and any regulatory obligations related to its intended use.
7. Third-Party Code and Third-Party Products
7.1. Open Source Software. The Products may include third-party technologies that are subject to separate open source or source available licenses that govern Customer’s use, replication, modification or creation of derivative works and redistribution of such third-party technologies (“Open Source Software”). Where required, ImageSource provides attribution for the Open Source Software distributed with a Product in accordance with the applicable open source or source available license(s)
7.2 Combining the Products with other Software. Customer may only modify the Products as expressly specified in the “Modifications” Section of the Agreement. In connection with any Modifications, Customer must not: (a) combine or distribute the Products with any other software, including Open Source Software, where the combined software would be subject to any license that requires, as a condition of use or distribution, that the combined software be made available in source code form, or (b) grant any third party any rights or waivers relating to any intellectual property or proprietary rights in the Products.
7.3 Commercial Third-Party Code in the Products.
(a) Commercial Components. The Products may also include components that ImageSource licenses commercially from third parties (“Commercial Components”). Customer may use Commercial Components only in conjunction with and through the Products as provided by ImageSource, and the restrictions for the Products in the Agreement also apply to Commercial Components.
(b) Restrictions. Customer must not (and must not permit anyone else to): (a) install, access or attempt to access, configure or use any Commercial Component (including any APIs, tools, databases or other aspects of any Commercial Components) separately from the rest of the Product, whether for production, technical support or any other purpose or (b) modify any Commercial Component (even where provided in source code form).
(c) Commercial Component Licensors. The applicable third-party licensor (“Commercial Component Licensor”) retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against Customer with respect to those items. Customer is responsible to the applicable Commercial Component Licensor for any breach of the Agreement with respect to the applicable Commercial Component(s). However, Commercial Component Licensors do not assume any of ImageSource’s obligations under the Agreement. To the maximum extent permitted by Law, no Commercial Component Licensor will be liable to Customer for any damages whatsoever.
7.2. Third-Party Products. Customer may choose to use the Products with third-party platforms, apps, add-ons, services or products (“Third-Party Products”). Use of such Third-Party Products with the Products may require access to Customer Data and other data by the third-party provider, which, for Cloud Products ImageSource will permit on Customer’s behalf if Customer has enabled that Third-Party Product. Customer’s use of Third-Party Products is subject to the relevant provider’s terms of use, not this Agreement. ImageSource does not control and has no liability for Third-Party Products.
8. Support Services
ImageSource will provide Support Services as described in the Order. ImageSource’s provision of Support Services is subject to Customer providing timely access to Customer Materials and personnel reasonably requested by ImageSource.
9. Ordering Process and Delivery
No Order is binding until ImageSource provides its acceptance, which may be demonstrated through the sending of a confirmation email, providing access to the Products, or making license or access keys available to Customer. No terms of any purchase order or other business form used by Customer will supersede, supplement, or otherwise apply to this Agreement or ImageSource.
10. Billing and Payment
10.1. Fees.
(a) Purchases. Fees and any payment terms are specified in Customer’s Order with ImageSource.
(b) Renewals. Renewal of a Product or Support Services Subscription Term is governed by the terms of the applicable Order.
(c) Increased Scope of Use. Customer may increase its Scope of Use by placing a new Order or modifying (by mutual written agreement with ImageSource) an existing Order. Unless otherwise specified in the applicable Order, ImageSource will charge Customer for any increased Scope of Use at ImageSource’s then-current rates, prorated for the remainder of the then-current Subscription Term.
(d) Refunds. All fees and expenses are non-refundable, except as otherwise provided in an Order or this Agreement.
10.2. Taxes.
(a) Taxes Generally. Fees and expenses are exclusive of any sales, use, GST, value-added, withholding or similar taxes or levies that apply to Customer’s Orders. Other than taxes on ImageSource’s net income, Customer is responsible for any such taxes or levies and must pay those taxes or levies, which ImageSource will itemize separately, in accordance with an applicable invoice.
(b) Withholding Taxes. To the extent Customer is required to withhold tax from payment to ImageSource in certain jurisdictions, Customer must provide valid documentation it receives from the taxing authority in such jurisdictions confirming remittance of withholding. This documentation must be provided at the time of payment of the applicable invoice to ImageSource.
(c) Exemptions. If Customer claims exemption from any sales tax, VAT, GST or similar taxes under this Agreement, Customer must provide ImageSource a valid tax exemption certificate or tax ID at the time of Order, and after receipt of valid evidence of exemption, ImageSource will not include applicable taxes on the relevant Customer invoice.
10.3. Suspension for Non-payment. ImageSource may suspend Customer’s rights to use Products or receive Support Services if payment is overdue, and ImageSource has given Customer no fewer than ten (10) days’ written notice, unless a shorter or longer period of time is specified in the applicable License Agreement, if any, or Order.
11. Warranties
Products and Support Services are warranted, if at all, only according to the terms of the License Agreement, if any, or Order. Except as expressly provided in the License Agreement, if any, or Order, the Products and Support Services and all related ImageSource services and deliverables are provided “AS IS.” ImageSource makes no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or non-infringement. ImageSource does not warrant that Customer’s use of the Products will be uninterrupted or error-free. ImageSource is not liable for delays, failures or problems inherent in use of the internet and electronic communications or other systems outside ImageSource’s control.
12. Term and Termination
12.1. Term. This Agreement commences on the date Customer accepts it and expires when all Subscription Terms have ended.
12.2. Termination. Customer may terminate a Subscription Term only in accordance with the terms of the applicable License Agreement, if any, and Order.
12.3. Effect of Termination. Upon expiration or termination of this Agreement or a Subscription Term: (a) Customer’s rights to use the applicable Products or Support Services will cease, (b) Customer must immediately cease accessing the Cloud Products and using the applicable Software Products and Cloud Clients, and (c) Customer must delete (or, on request, return) all license keys, access keys and any Product copies. Following expiration or termination, unless prohibited by Law, ImageSource will delete Customer Data in accordance with the applicable License Agreement, if any, and Order.
12.4. Survival. These Sections survive expiration or termination of this Agreement: 2.2 (Restrictions), 4.2 (Security Program), 10.1 (Fees), 10.2 (Taxes), 11 (Warranties), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification by ImageSource), 16 (Confidentiality), 18 (General Terms) and 19 (Definitions).
13. Ownership
Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement. As between the parties, Customer owns all intellectual property and other rights in Customer Data and Customer Materials provided to ImageSource or used with the Products. ImageSource and its licensors retain all intellectual property and other rights in the Products, any Support Services deliverables and related source code, ImageSource technology, templates, formats and dashboards, including any modifications or improvements.
14. Limitations of Liability
14.1. Damages Waiver. Except for Excluded Claims or Special Claims, to the maximum extent permitted by Law, neither party will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
14.2. General Liability Cap. Except for Excluded Claims or Special Claims, to the maximum extent permitted by Law, each party’s entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid to ImageSource for the Products and Support Services giving rise to the liability during the twelve (12) months preceding the first event out of which the liability arose. Customer’s payment obligations under Sections 10.1 (Fees) and 10.2 (Taxes) are not limited by this Section 14.2.
14.3. Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Section 2.2 (Restrictions) or Section 6 (Customer Obligations), (b) either party’s breach of Section 16 (Confidentiality) but excluding claims relating to Customer Data or Customer Materials, or (c) amounts payable to third parties under ImageSource’s obligations in Section 15 (Indemnification by ImageSource).
14.4. Special Claims. For Special Claims, ImageSource’s aggregate liability under this Agreement will be the lesser of: (a) two times (2x) the amounts paid to ImageSource for the Products and Support Services giving rise to the Special Claim during the twelve (12) months preceding the first event out of which the Special Claim arose, and (b) $5,000,000. “Special Claims” means any unauthorized disclosure of Customer Data or Customer Materials caused by a breach by ImageSource of its obligations in Section 4.2 (Security Program).
14.5. Nature of Claims and Failure of Essential Purpose. The exclusions and limitations in this Section 14 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
15. Indemnification by ImageSource
15.1. IP Indemnification. ImageSource will: (a) defend Customer from and against any third-party claim to the extent alleging that the Products, when used by Customer as authorized by this Agreement, infringe any intellectual property right of a third party (an “Infringement Claim”), and (b) indemnify and hold harmless Customer against any damages, fines or costs finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by ImageSource resulting from an Infringement Claim.
15.2. Procedures. ImageSource’s obligations in Section 15.1 (IP Indemnification) are subject to Customer providing: (a) sufficient notice of the Infringement Claim so as to not prejudice ImageSource’s defense of the Infringement Claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the Infringement Claim, and (c) all reasonably requested cooperation, at ImageSource’s expense for reasonable out-of-pocket expenses. Customer may participate in the defense of an Infringement Claim with its own counsel at its own expense.
15.3. Settlement. Customer may not settle an Infringement Claim without ImageSource’s prior written consent. ImageSource may not settle an Infringement Claim without Customer’s prior written consent if settlement would require Customer to admit fault or take or refrain from taking any action (other than relating to use of the Products).
15.4. Mitigation. In response to an actual or potential Infringement Claim, ImageSource may, at its option: (a) procure rights for Customer’s continued use of the Products, (b) replace or modify the alleged infringing portion of the Products without reducing the overall functionality of the Products, or (c) terminate the affected Subscription Term and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
15.5. Exceptions. ImageSource’s obligations in this Section 15 (Indemnification by ImageSource) do not apply to the extent an Infringement Claim arises from: (a) Customer’s modification or unauthorized use of the Products, (b) use of the Products in combination with items not provided by ImageSource (including Third-Party Products), (c) any unsupported release of the Software Products or Cloud Clients, or (d) Third-Party Products, Customer Data or Customer Materials.
15.6. Exclusive Remedy. This Section 15 (Indemnification by ImageSource) sets out Customer’s exclusive remedy and ImageSource’s entire liability regarding infringement of third-party intellectual property rights.
16. Confidentiality
16.1. Definition. “Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that: (a) is designated by the disclosing party as proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. ImageSource’s Confidential Information includes, but is not limited to, any source code and technical or performance information about the Products. Customer’s Confidential Information includes, but is not limited to, Customer Data and Customer Materials.
16.2. Obligations. Unless expressly permitted by the disclosing party in writing, the receiving party must: (a) hold the disclosing party’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, and (b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose such Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for ImageSource, the subcontractors referenced in Section 18.9 (Subcontractors and Affiliates)), provided the receiving party remains responsible for their compliance with this Section 16 (Confidentiality) and they are bound to confidentiality obligations no less protective than this Section 16 (Confidentiality).
16.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can demonstrate: (a) is or becomes publicly available through no fault of the receiving party, (b) it knew or possessed prior to receipt under this Agreement without breach of confidentiality obligations, (c) it received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the disclosing party in advance and cooperates, at the disclosing party’s cost, in any reasonable effort to obtain confidential treatment.
16.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or anticipated breach of this Section 16 (Confidentiality).
17. Publicity
Unless otherwise provided in an Order, ImageSource may identify Customer as a customer of ImageSource in its promotional materials. ImageSource will promptly stop doing so upon Customer request sent to image@imagesourceinc.com.
18. General Terms
18.1. Compliance with Laws. Each party must comply with all Laws applicable to its business in its performance of obligations or exercise of rights under this Agreement.
18.2. Assignment.
(a) Customer may not assign or transfer any of its rights or obligations under this Agreement or an Order without ImageSource’s prior written consent. However, Customer may assign this Agreement in its entirety (including all Orders) to its successor resulting from a merger, acquisition, or sale of all or substantially all of Customer’s assets or voting securities, provided that Customer provides ImageSource with prompt written notice of the assignment and the assignee agrees in writing to assume all of Customer’s obligations under this Agreement and complies with ImageSource’s procedural and documentation requirements to give effect to the assignment.
(b) Any attempt by Customer to transfer or assign this Agreement or an Order, except as expressly authorized above, will be null and void.
(c) ImageSource may assign its rights and obligations under this Agreement (in whole or in part) without Customer’s consent.
18.3. Governing Law, Jurisdiction and Venue.
This Agreement will be governed and construed in accordance with the laws of the State of Washington without regard to conflict of laws provisions. The courts of the State of Washington located in the County of Thurston and the United States District Court for the State of Washington shall have exclusive jurisdiction and venue of any legal proceeding regarding this Agreement, and the parties expressly submit to the jurisdiction and venue of said courts.
18.4. Notices.
(a) Except as specified elsewhere in this Agreement, notices under this Agreement must be in writing and are deemed given on: (i) personal delivery, (ii) when received by the addressee if sent by a recognized overnight courier with receipt request, (iii) the third business day after mailing, or (iv) the first business day after sending by email, except that email will not be sufficient for notices regarding Infringement Claims or alleging breach of this Agreement by ImageSource.
(b) Contact information for notices to ImageSource in accordance with this Agreement is as follows: 3003 Sunset Way SE, Tumwater, WA 98501; image@imagesourceinc.com.
(c) Notices to Customer must be provided to the billing or technical contact provided to ImageSource, which may be updated by Customer from time to time in Customer’s account portal. However, ImageSource may provide general or operational notices, including notice of updates to this Agreement, via email, on its website or through the Products.
18.5. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of a conflict among the documents making up this Agreement, the main body of this Agreement (i.e., Sections 1 through 19, inclusive) will control, except that the License Agreement, if any, and the Order will control for their specific subject matter.
18.6. Interpretation, Waivers and Severability. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Waivers must be granted in writing and signed by the waiving party’s authorized representative. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
18.7. Changes to this Agreement. ImageSource may modify this Agreement from time to time, by posting the modified portion(s) of this Agreement on ImageSource’s website.
18.8. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control and occurring without that party’s fault or negligence, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact.
18.9. Subcontractors and Affiliates. ImageSource may use subcontractors or its Affiliates, if any, in the performance of its obligations under this Agreement, but ImageSource remains responsible for its overall performance under this Agreement and for having appropriate written agreements in place with its subcontractors to enable ImageSource to meet its obligations under this Agreement.
18.10. Independent Contractors. The parties are independent contractors, not agents, partners or joint ventures.
18.11. Export Restrictions.
(a) The Products may be subject to U.S. export restrictions and import restrictions of other jurisdictions. Customer must comply with all applicable export and import Laws in its access to, use of, and download of the Products or any part of the Products. Customer must not (and must not allow anyone else to) export, re-export, transfer or disclose the Products or any direct product of the Products: (i) to (or to a national or resident of) any U.S. embargoed jurisdiction (ii) to anyone on any U.S. or applicable non-U.S. restricted- or denied-party list, or (iii) to any party that Customer has reason to know will use the Products in violation of U.S. export Law, or for any restricted end user under U.S. export Law.
(b) Customer must not provide ImageSource any data subject to the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions governing defense articles, technology or services and must not use the Products for any activity subject to such Laws.
18.12. No Contingencies. The Products and Support Services in each Order are purchased separately and not contingent on purchase or use of other ImageSource products and services, even if listed in the same Order. Customer’s purchases are not contingent on delivery of any future functionality or features.
19. Definitions
“Acceptable Use Policy” means ImageSource’s Acceptable Use Policy.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Agreement” means this ImageSource Customer Agreement.
“Cloud Products” means ImageSource’s cloud products, including client software for its cloud products (“Cloud Clients”).
“Customer Data” means any data, content or materials provided to ImageSource by or at the direction of Customer or its Users via the Cloud Products, including from Third-Party Products.
“Customer Materials” means materials and other resources that Customer provides to ImageSource in connection with Support Services.
“Documentation” means ImageSource’s usage guidelines and standard technical documentation for the applicable Product.
“Laws” means all applicable laws, regulations, conventions, decrees, decisions, orders, judgments, codes and requirements of any government authority (federal, state, local or international) having jurisdiction.
“Order” means ImageSource’s ordering document or online order specifying the Products or Support Services to be provided under this Agreement, accepted by ImageSource in accordance with Section 9 (Ordering Process and Delivery), including, without limitation, ImageSource’s Software as a Service (Cloud) Agreement, Software as a Service (On-Prem) Agreement, and Support Services Agreement.
“Policies” means the Acceptable Use Policy, Privacy Policy, Security Measures, and any additional ImageSource policies referenced in this Agreement.
“Privacy Policy” means ImageSource’s Privacy Policy.
“Products” means the applicable Cloud Products or Software Products made available by ImageSource in connection with an Order.
“Scope of Use” means Customer’s entitlements to the Products specified in an Order, which may include: (a) number and type of Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.
“Security Measures” means ImageSource’s security practices as specified in its Security Measures.
“Support Services Agreement” means the service level commitments, if any, for a Cloud Product.
“Software Products” means ImageSource’s installed software products and any generally-available bug fixes, updates and upgrades it provides to Customer, including through Support.
“Subscription Term” means the term for Customer’s use of or access to the Products and related Support Services as identified in an Order.
“Support” means the level of support for the Products corresponding to Customer’s Scope of Use.
“User” means any individual that Customer authorizes to use the Products. Users may include: (i) Customer’s and its Affiliates’ employees, consultants, contractors and agents (ii) third parties with which Customer or its Affiliates transact business (iii) individuals invited by Customer’s users (iv) individuals under managed accounts, or (v) individuals interacting with a Product as Customer’s customer.