Software as a Service Terms of Use Agreement

Software as a Service Terms of Use Agreement

Your use of SouthVault's Internet site (the "Site") or any of the software subscription service offerings or other services offered on the Site including any off-line or third party components, data, lists, reports, dashboards, templates or services (collectively, the "Services") is subject to these Terms of Use (this "Agreement"). If you do not agree to this Agreement, you agree not to use or access the Services or the Site. If you are agreeing to this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. Your registration for, or use of, the Site or the Services shall be deemed to be your acceptance of this Agreement. SouthVault may modify this Agreement at any time without notice to you by posting a revised Agreement on the Site. Your continued use of the Site constitutes your binding acceptance of this Agreement, including any modifications that SouthVault makes. You are responsible for regularly reviewing this Agreement. This Agreement is comprised of two parts, the General Terms and the Country Specific Terms. The term "SouthVault" as used herein is the company from whom you are purchasing the Services, either directly or indirectly through a reseller.

PART 1. General Terms

1. Additional Terms; Service Communications

1.1 Some of the Services may be subject to additional conditions either posted on the Site or contained in ordering documents (referred to herein as an "Order Schedule") that describe order-specific information, such as Services names, billing information, subscription prices, user quantities, and license term. Your use of the Services is subject to those conditions, which are incorporated into this Agreement by reference. In the event of an inconsistency between this Agreement and any additional conditions, the provisions of such additional conditions will prevail.

1.2 You understand and agree that the Services may include communications such as service announcements and administrative messages from SouthVault or SouthVault's partners. You will not be able to opt out of receiving these service announcements and administrative messages while using the Site and Services until you send SouthVault a specific written notice pursuant to Section 14.2 requesting the termination of your subscription and that your details be eliminated from the Site and any mailing list. You also understand that SouthVault's Services may include advertisements.

2. License Grant; Your Content

2.1 SouthVault hereby grants you a non-exclusive, non-transferable right to use the Site and Services for the term for which you have paid the applicable subscription fees ("License Term"), solely for your own internal business purposes, subject to this Agreement and the Order Schedule. If any subscription based Service is licensed on a "named user" basis, rights of any user licensed to utilize the Service cannot be shared or used by more than one individual. In addition, a user may not be transferred from one individual to another unless the original user no longer requires, and is no longer permitted, access to the Service.

2.2 The Site includes a combination of content that SouthVault creates, that SouthVault's partners create, and that SouthVault's users create. You may use the content on the Site only for your internal business purposes in connection with the Services and/or your licensed use of SouthVault's products. Except for the foregoing, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works of, distribute, publicly perform, reverse engineer, publicly display, or in any way exploit any of the software, materials or content on the Site in whole or in part.

2.3 You are solely responsible for all materials, whether publicly posted or privately transmitted, that you upload, post, e-mail, transmit, or otherwise make available on the Site or through the Service ("Your Content"). You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content. Your Content will be protected by SouthVault with at least the same protective precautions that SouthVault takes to protect its similar proprietary information from unauthorized disclosure. SouthVault will not, without your prior written consent, disclose any of Your Content to any thirty party, except to those bona fide individuals whose access is necessary to enable SouthVault to perform its obligations hereunder.

2.4 You warrant that you own or have sufficient legal right to the intellectual property rights in Your Content and that Your Content, including any use thereof by SouthVault as described herein, does not violate applicable law or the rights of any third party. You hereby grant SouthVault, SouthVault's affiliates, and SouthVault's partners a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable right during the License Term to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of (i) displaying Your Content on the Site and other related Internet sites for your users, (ii) processing Your Content in connection with providing the Services to you, (iii) distributing Your Content, either electronically or via other media, to your users seeking to download or otherwise acquire it, and/or (iv) storing or hosting Your Content in a remote database or on the Site for access by your users. This license will apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.

2.5 SouthVault shall be entitled to adjust the scope of the Services and the underlying technical infrastructure to reflect the continuing development of the Services and technical advances.

3. Technical Support

SouthVault provides a telephone Hotline support number, and/or an Internet address for submitting support requests, maintained by qualified support specialists, per SouthVault's policies. The first call should be to the dealer to determine if the problem is hardware or software.

4. Intellectual Property Rights

SouthVault and/or its SouthVault’s owns all rights, title and interests, including all intellectual property rights, in and to the Site and the Services, the software, materials and other related content (excluding Your Content), and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Site or the Services. In addition, all content published on the Site, including, but not limited to, reports, presentations, written content, graphics, images, marks, logos, sound or video clips, and Flash or Java animation, are protected by SouthVault's copyrights or trademarks or those of SouthVault's partners or users.

5. Third-Party Sites, Products, and Services

5.1 The Site may contain links to other Internet sites owned by third parties. Your use of each of those sites is subject to the conditions, if any, that each of those sites have posted. SouthVault has no control over sites that are not ours, and SouthVault is not responsible for any use of such sites or content on them. SouthVault's inclusion on the Site of any third-party content or a link to a third-party site is not an endorsement of that content or third-party site.

5.2 Some content may come from government sources, is in the public domain, and is not copyrightable.

6. Fees

6.1 You agree to pay the fees on the terms stated in the Order Schedule. You agree to pay all applicable taxes relating to the Services. Any amount payable by you to the dealer or SouthVault which is past due will be subject to a late payment charge equal to one percent (1%) per month, or the highest rate permitted by law, whichever is less.

7. Term and Termination; Service Cancellation

7.1 The Services will be automatically renewed upon the expiration of the then current License Term, unless you give the dealer or SouthVault written notice thirty (30) days prior to the end of the then current License Term, of your intention to terminate the Services. Fees at the time of automatic renewals will be at the then-current Services rates. Notwithstanding the foregoing, SouthVault may immediately terminate or suspend your use of the Services provided hereunder, or terminate your account and this Agreement if you (i) fail to pay any applicable fees when due, or (ii) breach or otherwise fail to comply with this Agreement and fail to remedy this breach within thirty (30) days of being so notified. SouthVault may terminate any free account or Services at any time in its sole discretion without liability to you. You will continue to be charged for the fee-based Services during any period of suspension. Termination will not relieve you from the obligation to pay fees that remain unpaid and will not limit either party from pursuing other available remedies.

7.2 You may terminate any fee-based Services or reduce the number of users effective only upon the expiration of the then current term by notifying SouthVault in accordance with this Agreement.

7.3 Upon termination by SouthVault of this Agreement or any part thereof in accordance with this Agreement as a result of your breach, negligence or default, SouthVault will have no obligation to refund to you any fees paid by you. The provisions of this section will not apply to those situations defined by law. Notwithstanding the foregoing, in the event your access to the Services is terminated (other than by reason of your breach), SouthVault will make available to you a file of your data within 30 days of termination if you so request at the time of termination.

7.4 In the event SouthVault (or its successor in interest) permanently ceases to operate the Services, SouthVault will refund to you any pre-paid subscription fees for the remaining months where you no longer have access to the Services.

8. Privacy Policy

8.1 All of the information that SouthVault collects from you, such as registration information, is subject to SouthVault's privacy policy and applicable privacy laws. This policy is expressly incorporated into and a part of this Agreement.

8.2 Because SouthVault operates globally, you understand and agree that any personal information that you may provide may be processed by SouthVault and SouthVault may, for example, transfer such information within SouthVault's global operations. If it is necessary for the purposes for which you have shared personal information with SouthVault for SouthVault to share your information within SouthVault's global operations, SouthVault will do so consistent with SouthVault's privacy policy.

8.3 The Site is hosted in the United States and Europe. If you are visiting from the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that you may transfer Your Content to the United States and by providing Your Content to SouthVault you represent, warrant, and covenant to SouthVault that: (i) you have the authority and right to enter into this Agreement, to grant the rights granted by you under this Agreement, and to perform your obligations under this Agreement; (ii) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by you as may be necessary for either party to perform its obligations, (iii) you are authorized to distribute Your Content to SouthVault, and (iv) you are not breaching any applicable data privacy rule or regulations, any of your contractual obligations, or any of your internal privacy policies.

8.4 You acknowledge and agree that certain of the Services may be provided by SouthVault's partners, and that your contact information may be provided to such partners in order for them to provide the Services, and such partners may contact you directly regarding other service offerings (you may opt out of receiving information about a partner's other service offerings by following the notice procedure set forth below).

9. Your Conduct on the Site and other Restrictions

9.1 If SouthVault requests registration information from you, you will provide SouthVault with true, accurate, current, and complete information. You will promptly update your registration to keep it accurate, current, and complete. If SouthVault issues you a password, you may not reveal it to anyone else. You may not use anyone else's password. You are responsible for maintaining the confidentiality of your accounts and passwords. You agree to immediately notify SouthVault of any unauthorized use of your passwords or accounts or any other breach of security. You also agree to exit from your accounts at the end of each session. SouthVault will not be responsible for any loss or damage that may result if you fail to comply with these requirements.

9.2 If SouthVault provides you with an administrator user ID and password for accessing the Service, you will assign them to your administrator. You will be responsible, through your administrator, for setting and modifying your and your users' profile and preferences for the Services, authorizing and terminating individual user ID's and passwords and specifying the access rights of those individuals to the Services. The administrator will notify SouthVault if the administrator needs to change the administrator's or any user's ID, and the administrator may do so only by contacting SouthVault at the email address for technical support specified by SouthVault from time to time.

9.3 You will be responsible for all activity occurring under your accounts and will comply with all applicable local, state, and foreign laws, treaties and regulations in connection with your use of the Services, including without limitation, laws and regulations governing data privacy, international communications and transmission of technical or personal data.

9.4 The technology and the software underlying the Site and the Services are the property of SouthVault and/or SouthVault's affiliates, suppliers and partners. You agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or software underlying the Site or the Services. You agree not to modify the software underlying the Site in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site. Without limiting the foregoing, you agree that you will not use the Site to take any of the following actions:

1. Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
2. Publish, post, upload, e-mail, distribute, or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
3. Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person's computer, SouthVault's sites, any software or hardware, or telecommunications equipment;
4. Advertise or offer to sell any goods or services for any commercial purpose unless you have SouthVault's written consent to do so;
5. Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
6. Download any file that you know or reasonably should know cannot be legally obtained in such manner;
7. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
8. Restrict or inhibit any other user from using and enjoying any area within the Site;
9. Interfere with or disrupt SouthVault's sites, servers, or networks;
10. Probe, scan or test the vulnerability of the Site or circumvent any security mechanism used by the Site;
11. Impersonate any person or entity, including, but not limited to, any SouthVault representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
12. Forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Site or to manipulate your presence on the Site;
13. Take any action that imposes an unreasonably or disproportionately large load on SouthVault's infrastructure;
14. Engage in any illegal activities; or
15. Collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations, including but not limited to, any Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations.

9.5 If offered as part of the Services, you agree to use SouthVault's bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities (collectively, the "Forums") only to send and receive messages and material that are proper and related to that particular Forum.

9.6 If you choose a username that, in SouthVault's sole discretion, is obscene, indecent, abusive or that might otherwise subject SouthVault to public disparagement or scorn, SouthVault reserve the right, without prior notice to you, to automatically change your username, delete your posts from SouthVault's sites, deny you access to SouthVault's sites, or any combination of these options.

9.7 Unauthorized access to the Site is a breach of this Agreement and a violation of the law. You agree not to access the Site by any means other than through the interface that is provided by SouthVault for use in accessing the Site. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Site, except those automated means that SouthVault has approved in advance in writing.

9.8 You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

9.9 Use of the Site is subject to existing laws and legal process. Nothing contained in this Agreement will limit SouthVault's right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Site, which may include disclosing Your Content to the applicable authorities.

10. Indemnification

10.1 You will defend SouthVault from any third party claim, and will pay all damages finally awarded against SouthVault in such claim or amounts agreed to in settlement, arising out of:

1. Your use of the Site;
2. Any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you;
3. The content, the quality, or the performance of content that you submit to the Site; or
4. Your violation of this Agreement.

10.2 SouthVault will defend you from any third party claim that your use of SouthVault's proprietary software hosted on the Site infringes its copyright, patent or trademark, and will pay all damages finally awarded against you in such claim. If SouthVault settles the claim, SouthVault will pay all settlement amounts on your behalf. In exchange, you must (i) promptly notify SouthVault if such a claim is asserted against you, (ii) allow SouthVault sole defense of the claim, and (iii) cooperate with SouthVault's requests for reasonable assistance, at SouthVault's expense. SouthVault will not be obligated to indemnify you if you are in violation of this Agreement. If as a result of the infringement or misappropriation your use of the software hosting on the Site is enjoined by a court of law, SouthVault will modify the software to make it non-infringing, acquire a license for you to continue using the software, or if neither option is possible, refund to you the applicable subscription fees paid by you during the 12 month period preceding the injunction. This is your exclusive remedy for a third party's infringement or misappropriation claim against your use of the software hosted on the Site.

11. Warranty; Disclaimers

11.1 SouthVault warrants that during the License Term, the Site will conform to the documentation provided by SouthVault. In the event the Site does not conform to the documentation, if you promptly notify SouthVault, SouthVault will modify the Site and/or the documentation so that it conforms. This is your exclusive remedy.

11.2 EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 11.1, THE SITE AND THE SERVICES, ITS SOFTWARE, CONTENT AND OTHER MATERIALS, ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. SOUTHVAULT AND ITS AFFILIATES, SUPPLIERS AND PARTNERS MAKE NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SITE OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE SITE.

12. LIMITATION OF LIABILITY

12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SOUTHVAULT NOR ITS AFFILIATES, SUPPLIERS OR PARTNERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICES OR THE SITE, ITS SOFTWARE, CONTENT OR OTHER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES.

12.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOUTHVAULT AND ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL AMOUNTS PAID BY YOU TO SOUTHVAULT FOR THE SERVICES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

12.3 SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES/JURISDICTIONS, SOUTHVAULT'S LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS AND PARTNERS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

13. Arbitration

Any dispute arising out of or relating to this Agreement or the Site will be finally settled by arbitration, except that SouthVault may bring an action in a court of competent jurisdiction with respect to any dispute affecting SouthVault's intellectual property rights whether statutory or contractual. The arbitration will be conducted in accordance with the commercial arbitration rules (the "Rules") of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in San Jose, California, United States, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. All arbitration proceedings will be conducted in English by a single arbitrator selected under the Rules who must be a lawyer and fluent in English. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. Either you or SouthVault may seek any interim or preliminary relief from a court of competent jurisdiction in San Jose, California, necessary to protect the rights or the property of you or SouthVault (or its affiliates, agents, suppliers, and subcontractors), pending the completion of arbitration.

14. Miscellaneous

14.1 The Site features trademarks, service marks, and logos that are the property of SouthVault and/or its affiliates, suppliers, partners and SouthVaults. The Site also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and you agree not to use them in any manner without the prior written permission of the applicable owner.

14.2 SouthVault may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon SouthVault's posting them on the Site or delivering them to you through e-mail. You may update your e-mail address by visiting the Services where you have provided contact information. If you do not provide SouthVault with accurate information, SouthVault cannot be held liable if SouthVault fail to notify you. You may have the right to request that SouthVault provide such notices to you in paper format, and may do so by contacting SouthVault, Contracts Administration, 2474 State Hwy 77, Marion, Arkansas 72364. Any other communication to SouthVault should also be sent to that address.

14.3 SouthVault's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. This Agreement and your right to use the Services may not be assigned by you without the prior written approval of SouthVault.

14.4 This Agreement, including any applicable Order Schedule and all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and SouthVault and govern your use of the Site and Services, superseding any prior agreements that you may have with SouthVault. Any additional or different terms in your ordering documentation such as purchase orders are hereby deemed to be material alterations and notice of objection to, and rejection of, them is hereby given.

14.5 This Agreement will be construed in accordance with the laws of the State of Arjansas, excluding its conflicts of law principles, and the federal laws of the United States.

14.6 You may not use, import or export materials on this Site in violation of United States, or any other applicable country's, import and export laws and regulations. SouthVault assumes no responsibility or liability for your failure to obtain any necessary export approvals. Without limiting the foregoing, you agree that the Site will not be used, and none of the underlying content, information, software, or technology may be transferred or otherwise exported or re-exported to persons subject to restrictions, destinations subject to embargo, or to prohibited proliferation-related end-users or end-uses, without obtaining any export license or other approval that may be required under United States, and any other applicable country's, laws, regulations and requirements. You hereby certify that none of the content on the Site, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

14.7 The Site and the Services, its software, content and other materials, will be deemed "commercial computer software" and "commercial computer software documentation" pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). The use of the Site and the Services including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form, will be governed by this Agreement.

14.8 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, the invalid or unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the intent of the original provision. Where a court is unable to construe any unenforceable or invalid provision to make it binding, the court will severe and delete the provision. In any event, all other terms which remain valid and enforceable will survive and remain in full force and effect.

14.9 If you have a dispute with one or more users, you release SouthVault (and SouthVault's officers, directors, agents, affiliates and employees) from claims, demands, and damages (direct and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are an Arkansas resident or incorporated in Arkansas, you waive Arkansas Civil Code �1542, which says: "A general release does not extend to claims which the creditor does not known or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

PART 2. Country Specific Terms

If you access the Services in any territory specified below (the "Local Territory"), this section sets forth specific provisions as well as exceptions to the above terms and conditions. To the extent any provision applicable to the Local Territory (the "Local Provision") set forth below is in conflict with any other term or condition in this Agreement, the Local Provision will supersede such other term or condition with respect to any Services provided in the Local Territory.

European Union Wide

The following amendments to this Agreement will be applicable in all European Union ("EU") countries:

10.1 The following replaces the terms of this section in its entirety:

You hereby agree to indemnify, defend and hold SouthVault and all of SouthVault's officers, directors, owners, employees, agents, affiliates, suppliers, partners and SouthVault’s (collectively, the "SouthVault Parties") harmless from and against any and all liability, losses, costs, and expenses (including attorneys' fees) incurred by any SouthVault Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement, arising from your breach of this Agreement or your negligence or willful misconduct of:

12. The following is added:

12.4 Nothing in this Agreement will seek to exclude or limit liability for:

1. Damages for death or personal injury to the extent caused solely by SouthVault's negligence; or
2. Any breach of SouthVault's obligations implied by statute which cannot be excluded.

13. The following is added:

13.2 In the EU, consumers have legal rights governing the sale of consumer goods. Such rights are not affected by the disclaimers set out above and all disputes arising out of or in connection with the execution and interpretation of this Agreement will be submitted to the exclusive competence of the judge of the place where the consumer is resident or has his/her domicile and the law applicable to the dispute will be the law of his / her domicile.

Belgium

If you access the Services in Belgium, the following amendments to this Agreement will apply:

9.6 The following replaces the terms of this section in its entirety:

You agree not to choose a user name which is obscene, indecent, and abusive or that might otherwise subject SouthVault to public disparagement or scorn. In case of breach of this provision, SouthVault reserve the right, without prior notice to you, to automatically change your username, delete your posts from SouthVault's sites, deny you access to SouthVault's sites, or any combination of these options.

11.2 The following replaces the terms of this section in its entirety:

The present guarantee will not prevent the application of the statutory guarantee provided under article 1641 of the Belgian civil code relating to hidden defects.

11. The following is added:

11.3 In any event, the present guarantee will not prevent the application of the statutory guarantee provided under article 1604 of the Belgian civil code which provides that goods delivered by sellers to buyers must conform to the sales contract.

Note: If the Services are sold to a consumer, then Section 11.4 is added:

11.4 In any event, the present guarantee will not prevent the application of the statutory guarantee provided under article 1649 quarter of the Belgian civil code which provides that SouthVault is liable towards the consumer for any lack of conformity which exists at the time of delivery and becomes apparent within two years from delivery. According to article 1649 quarter of the Belgian civil code, goods delivered will only be deemed to conform with the contract if they:

1. Comply with the description given by the seller and possess the qualities of the goods held out by the seller to the consumer as a sample or a model;
2. Are fit for the consumer's requirements which were made known to the seller when the contract was concluded and which the seller accepted;
3. Are fit for the purpose for which similar goods are normally used; and
4. Show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect.

12.1 The following replaces the terms of this section in its entirety:

To the maximum extent permitted by applicable law, neither SouthVault nor SouthVault's affiliates, suppliers or partners will be liable for any indirect, incidental damage for financial, commercial or data loss, loss of profit or loss of opportunity, whether foreseeable or unforeseeable, notwithstanding any direct damage arising from bodily harm, gross negligence, fraud, wilful misconduct or material default, in connection with or arising out of the Services or the Site, even if SouthVault have been advised on the possibility of such damage, including, but not limited to, damage for loss of profits, goodwill, use or loss of data or other intangible losses, resulting from but not limited to: (i) the use or the inability to use the Site and the Services; (ii) the costs of procurement of substitute goods and services; (iii) unauthorized access to, alteration of, or inaccuracy, error or omissions in your content, transmissions or data; (iv) statements or conduct of any third party; or (v) any other matter relating to the Site and the Services.

France

If you access the Services in France, the following amendments to this Agreement will apply:

2.5 The following replaces the terms of this section in its entirety:

You may be exposed to content that you find offensive, indecent, or objectionable or that is inaccurate, and you bear all risks associated with using that content. SouthVault will use SouthVault's best endeavours but will not be under any obligation, to remove any content that is reported to SouthVault as violating this Agreement or otherwise being objectionable.

11.2 The following replaces the terms of this section in its entirety:

In any event, the present guarantee will not prevent the application of the statutory guarantee provided under article 1641 of the French civil code relating to hidden defects.

12.1 The following replaces the terms of this section in its entirety:

To the maximum extent permitted by applicable law, neither SouthVault nor SouthVault's affiliates, suppliers or partners will be liable for any indirect, incidental damages or loss of profits whether foreseeable or unforeseeable, notwithstanding direct damages arising directly from bodily harm, gross negligence or wilful misconduct or material default, in connection with or arising out of the services or the site, even if SouthVault have been advised of the possibility of such damages, including, but not limited to, damages for loss of profits, goodwill, use or loss of data or other intangible losses, resulting from but not limited to: (i) the use or the inability to use the site and the services; (ii) the cost of procurement of substitute goods and services; (iii) unauthorized access to, alteration of, or inaccuracy, error or omissions in your content, transmissions or data; (iv) statements or conduct of any third party; or (v) any other matter relating to the site and the services.

Germany

If you access the Services in Germany, the following amendments to this Agreement will apply:

9.6 The following replaces the terms of this section in its entirety:

You are not allowed to choose a username that, in SouthVault's sole discretion, is obscene, indecent, abusive or that might otherwise subject SouthVault to public disparagement or scorn. If you have chosen such a username, SouthVault reserve the right to automatically change your username and/or after giving prior notice, delete your posts from SouthVault's sites, deny you access to SouthVault's sites, or any combination of these options.

11. The following replaces the terms of this section in its entirety:

11.1 SouthVault will provide its Services with best effort and necessary care.

11.2 If a defect of the Services results from not or not timely complying with your obligation to co-operate and to mitigate damages, SouthVault will not be liable for such damages.

11.3 In case of a defect of the Services, SouthVault has the right to remedy such defect within a reasonable period of time by way of subsequent legal performance. This will be carried out by SouthVault at no costs for you should SouthVault be responsible for the defect. In all other cases Business Object will remedy the defect for payment in accordance with its current pricelist. You are only entitled to additional remedies against SouthVault if the subsequent performance is refused by SouthVault or is unsuccessful or cannot be reasonably accepted. Performance is deemed to have been unsuccessful after SouthVault's second attempt to remedy the defect.

11.4 The warranty period for defects, if any, will expire after twelve (12) months from delivery.

11.5 The amount of liability and compensation of damages resulting from a defect is subject to the Limitation of Liability in Section 11.

12. The following replaces the terms of this section in its entirety:

12.1 SouthVault will be liable for damages only in the event that such damages have been caused by SouthVault's or its designated agent's intent or gross negligence. In addition thereto, SouthVault will be only liable up to the amount of the typically foreseeable damages as far as the damage is pertaining to the breach of a contractual core duty caused by slight negligence. The above-mentioned limitation of liability does not restrict a compelling liability, including, without limitation, the liability based on the Product Liability Act.

12.2 SouthVault will not be liable if the damage arises from an alteration or modification of the Service by Licensee. Moreover, SouthVault will not be liable if the damage was caused by fortuity, incorrect or inappropriate use or if the respective damage arouse from the use of the Service in combination with other products.

12.3 You will make security copies of your data on a regular basis, at least once per day. Any breach to this obligation will be deemed a contributory negligence.

Italy

If you access the Services in Italy, the following amendments to this Agreement will apply:

2.1 The following is added:

With the exception of any mandatory provisions of law, you will not carry out any of the activities set forth at article 64-bis of law no. 633/41 without SouthVault's prior written consent and, more precisely, you will not translate, amend, transform, de-compile, disassemble, modify, improve or otherwise reverse engineer any software included in the Service or any OEM Application without SouthVault's prior written consent. Furthermore, in derogation from article 64-ter of law no. 633/41, you may not carry out any of the activities set forth at article 64-bis of law no. 633/41, paragraphs a) and b) without SouthVault's consent, even in the event that such activities are necessary for the use or the Service according to its destination, including the correction of errors.

6.1 The following replaces the terms of this section in its entirety:

You agree to pay the fees on the terms stated in the Order Schedule. You agree to pay all applicable taxes relating to the Services. Subject to any compulsory provision of law applicable to consumer parties, any amount payable by you to SouthVault which is past due will be subject to a late payment charge in the amount determined under Article 5 of legislative decree no. 231 of October 9, 2002, without prejudice to any further right and remedy available to SouthVault at law.

Netherlands

If you access the Services in the Netherlands, the following amendments to this Agreement will apply:

9.6 The following replaces the terms of this section in its entirety:

You are not allowed to choose a username that, in SouthVault's sole discretion, is obscene, indecent, abusive or that might otherwise subject SouthVault to public disparagement or scorn. If you have chosen such a username, SouthVault reserve the right to automatically change your username and, after giving you prior notice: (i) delete your posts from SouthVault's sites and/or (ii) deny you access to SouthVault's sites.

12.4 The following replaces the terms of this section in its entirety:

Nothing in this Agreement will seek to exclude or limit liability for:

1. damages for death or personal injury or damage to real or tangible personal property to the extent caused solely by SouthVault's negligence;
2. any breach of SouthVault's obligations implied by statute which can not be excluded; or
3. damages that are the result of (i) wilful misconduct or of (ii) gross negligence on the part of SouthVault or its executives.

Spain

If you access the Services in Spain, the following amendments to this Agreement will apply:

The following is added:

In respect of the Services accessed in territories or places subject to the laws of Spain the Spanish Local Provisions (as defined below) will take precedence in all circumstances in as much as the general terms and conditions governing this Site are in conflict with them. The general terms and conditions of this Site which are not in conflict with the Spanish Local Provisions will be fully applicable under the Spanish Privity of Contract rules.

For present purposes the Spanish Local Provisions are the imperative sections, "imperative" being construed as legally non-disposable provisions under Spanish law, of the following Acts of the Spanish Parliament (as amended from time to time):

• The Spanish Data Protection Act 1999 (LEY ORG�NICA 15/1999, de 13 de diciembre, de Protecci�n de Datos de Car�cter Personal),
• The Spanish Act for the protection of Consumers and End Users 1984 (LEY 26/1984, de 19 de julio, General para la Defensa de Consumidores y Usuarios),
• The Spanish Act for the General Conditions for Entering into a Contract 1998 (LEY 7/1998, de 13 de abril, sobre condiciones generales de la contrataci�n),
• The Spanish Civil Code,
• The Spanish Code of Commerce,
• The Spanish Law for E-Commerce 2002 ( LEY 34/2002, de 11 de julio, de servicios de la sociedad de la informaci�n y de comercio electr�nico),
• Any other Spanish Act which confers to the parties signing these terms and conditions a Spanish Statutory right or imposes a Spanish statutory obligation (including those arising from EU regulations directly applicable in Spain or EU directives yet to be implemented by the Spanish government).

For the purposes of Section 13, a consumer will include an end user as defined in Spanish law.

United Kingdom

If you access the Services in United Kingdom, the following amendments to this Agreement will apply:

12. The following is added:

12.5 This Agreement set out SouthVault's entire liability and your sole remedies, whether in contract or in tort, in respect of any breach of this Agreement.

14. The following is added:

14.10 A person who is not a party to this Agreement will have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this will not affect any right or remedy of a third party which exists or is available apart from that Act.

Switzerland

If you access the Services in Switzerland, the following amendments to this Agreement will apply:

12. The following is added:

12.4 Nothing in this Agreement will seek to exclude or limit liability for:

1. Damages for death or personal injury;
2. Damages caused by SouthVault's intentional misconduct or gross negligence; or
3. Any breach of SouthVault's obligations implied by statute which cannot be excluded.

Japan

If you access the Services in Japan, the following amendments to this Agreement will apply:

13. The following replaces the terms of this section in its entirety:

Any dispute arising out of or relating to this Agreement or the Site will be finally settled by arbitration. The arbitration will be conducted in accordance with the commercial arbitration rules (the "Rules") of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. All arbitration proceedings will be conducted in English by a single arbitrator selected under the Rules who must be a lawyer and fluent in English. The arbitrator has no authority to award damages in excess of those permitted in this Agreement for any reason. Any award in excess of such limitation will be deemed void as between the parties. Either you or SouthVault may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or the property of you or SouthVault (or its affiliates, agents, suppliers, and subcontractors), pending the completion of arbitration.

Australia & New Zealand

If you access the Services in Australia or New Zealand, the following amendments to this Agreement will apply:

13. The following replaces the terms of this section in its entirety:

Mexico

If you access the Services in Mexico, the following amendments to this Agreement will apply:

12.3 The following replaces the terms of this section in its entirety:

SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES/JURISDICTIONS, SOUTHVAULT AND SOUTHVAULT'S AFFILIATES, SUPPLIERS AND PARTNERS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE GREATER OF US$1000 OR THE TOTAL AMOUNTS, IF ANY, PAID BY YOU TO US FOR THE SERVICES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.