Defined Terms. As used in this Agreement, the following terms have the meanings specified in this Section 1 below. All capitalized terms used but not defined herein have the meaning given to them in the applicable Order.
“AAA” means the American Arbitration Association (http://www.adr.org).
“AAA Rules” has the meaning set forth in Section 12.9.
“Agreement” means the General Terms and any Order accepted by Company, collectively.
“Arbitration” has the meaning set forth in Section 12.9.
“Authorized User” means a specific and unique employee, contractor, representative or agent of Customer, who is provided access to the Services or Platform.
“Barrel” means Company’s proprietary Internet-connected construction barrel.
“Confidential Information” has the meaning set forth in Section 8.1.
“Customer Data” has the meaning set forth in Section 4.1.
“Disclosing Party” has the meaning set forth in Section 7.
“Documentation” means Company’s standard user guides and manuals relating to the Platform, including on-line help, as updated and amended from time to time.
“Effective Date” means the date on which Company accepts an Order and the Agreement becomes effective.
“Equipment” means the Barrel(s) and any and all related devices and equipment, including replacements thereof, provided by Company to Customer for the Services, including as further set forth on the applicable Order.
“Equipment Loss” means Equipment that is stolen, lost or damaged while in the possession of Customer, its Authorized Users or any subcontractor of Customer.
“Equipment Loss Fee” means the fee charged by Company and payable by Customer resulting from an Equipment Loss, which shall include US$2,500.00 per Barrel; provided, however, that the Replacement Fee will be waived for up to one (1) Barrel per year calculated from the date of the Initial Subscription Term, if Customer has committed to an Initial Subscription Term of at least six (6) months or more and is in full compliance with the Agreement, and the Equipment Loss is not the result of gross negligence or willful misconduct of Customer, its Authorized Users or any subcontractor of Customer.
“Equipment Recovery Fee” means the fee charged by Company and payable by Customer that amounts to all of Company’s costs and expenses to recover Equipment that is not returned by Customer upon cancellation pursuant to Section 3.6.
“FAA” means the U.S. Federal Arbitration Act, 9 U.S.C. §§1 et seq., as amended.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, service marks, trade names, rights to use domain names, rights in get-up, goodwill and the rights to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, topography rights, rights to use and preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“IP Exclusions” has the meaning set forth in Section 10.1.
“General Terms” means these General Terms and Conditions for Orders, as amended and in effect.
“Order” means a completed Order Form by Customer on the form provided by Company, as signed and accepted by Company.
“Permits” has the meaning set forth in Section 6.2.
“Platform” means Company’s proprietary technology platform, including all related software and Equipment.
“Proprietary Items” mean, collectively, the Services, Platform, Equipment, and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Platform, Equipment, or Documentation, and all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Platform, Equipment, or Documentation, of Company.
“Receiving Party” has the meaning set forth in Section 7.
“Unreturned Equipment Replacement Fee” means the fee charged by Company and payable by Customer resulting from an Equipment Loss, which shall include US$2,500.00 per Barrel plus Company’s costs and expenses to attempt to recover.
“Services” mean the subscriptions ordered by Customer under an Order, including limited access and use rights to the applicable Platform in accordance with the Documentation, Order and the Agreement.
“Subscription Term” means the duration of Customer’s right to receive, access, and use the Services and Platform, as set forth on an initial Order (the “Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the applicable Order, the Initial Subscription Term shall be twelve (12) months. The Subscription Term shall automatically renew for a term that is equal to the Initial Subscription Term, unless one Party provides the other Party at least sixty (60) days written notice of its intent to not renew the Subscription Term (each a “Renewal Subscription Term”).
“Trial Period” means the length of time specified in an initial Order (or if not so specified, then fourteen (14) days), if at all upon Customer’s election, during which time Customer will receive the Equipment and access to the Platform for a number of Authorized Users as designated in such Order, for purposes of evaluating the Services and the Platform. The Trial Period shall commence on the date that Customer receives the Equipment and Company activates the Services for Customer.
Subscription Rights and Services.
Subscription Rights; Company Obligations. Subject to the terms and conditions of the Agreement, including the payment of all applicable fees by Customer, Company shall make available to Customer and its Authorized Users on a non-exclusive and non-transferable basis during the Subscription Term the Services and Equipment and applicable functions and features in accordance with the Documentation and applicable Order(s). Company shall provide support in accordance with its then-current policies and practices for the Services and Platform. From time to time in accordance with Company’s generally applicable policies and procedures, Company in its sole discretion shall make available and implement upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available to its other clients. Customer agrees that its purchase of a subscription to the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company regarding future functionality or features.
Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of, and loss or damage to, the Platform, including any Equipment Loss, and notify Company promptly of any such event or circumstance, and (c) use the Services and Platform only in accordance with the Agreement, the Documentation and applicable laws and regulations for its internal business functions. In order to access and use the Platform, Customer must have or must obtain access to the Internet. Customer must also provide all equipment necessary to make (and maintain) such connection to the Internet.
Restrictions. Customer shall not (and shall not permit any Authorized User to) directly or indirectly: (a) make the Services or Platform available to any third party other than Authorized Users, except as such third party access is expressly agreed to between the parties in the Order; (b) resell, lease, copy, frame, mirror, distribute, transfer, or otherwise make available the Services or Platform on a time-sharing or service bureau basis; (c) use the Services or Platform to violate any laws or regulations, (d) use the Services or Platform to store or transmit malicious code, (e) decompile, disassemble, reverse engineer, disassemble, or otherwise attempt to discover the source code the Services or the Platform, in whole or in part; (f) interfere with the performance of the Services, the Platform or third party data contained therein; (g) attempt to gain unauthorized access to the Services, the Platform or its related systems or networks; (h) modify, translate, or create derivative works based on the Services or Platform; or (i) remove any proprietary notices or labels.
Trial Period. Customer has the option to elect to undertake an initial evaluation of the Equipment and the Platform, if so elected in its initial Order. Fees payable and associated with the Trial Period, as set forth in the Order, are non-refundable and due and payable in advance of the Trial Period by Customer and shipment of the Equipment by Company. Company requires Customer to subscribe for at least ten (10) Authorized User subscriptions for the Services for any Trial Period. Customer must provide written notice to Company prior to the expiration of the Trial Period of its intent to cancel the Services. If no such notice is received by Company, the Initial Subscription Term shall commence immediately upon expiration of the Trial Period, including fee obligations of Customer, in accordance with the Order. If Customer elects to cancel the Order during the Trial Period, Customer shall immediately make available the Equipment for collection by Company. These General Terms apply in their entirety during the Trial Period including, without limitation and for clarification, the terms and provisions related to the Equipment, Equipment Loss, return of Equipment, the Services, the Platform, and Intellectual Property Rights.
Equipment.
General. Company shall deliver to Customer the Equipment in accordance with an Order. Subject to Customer’s compliance with the Agreement, including, without limitation, payment of amounts due hereunder, Customer shall be entitled to possess and use the Equipment during the Subscription Term. Customer will use, operate, and care for the Equipment in accordance with the Agreement and the Documentation. Customer is responsible for keeping the Equipment in good condition and working order, ordinary wear and tear excepted, and, unless otherwise expressly provided in the Agreement, Customer shall be responsible for the cost of any and all repairs to the Equipment, including any Replacement Fees, that are the necessary due to the negligence or willful misconduct of Customer, its Authorized Users or any subcontractors of Customer. Customer shall not enter into any sublease with respect to any item of any Equipment without Company’s prior written consent which shall be within the sole discretion of Company, and in all cases, no permitted sublease shall relieve Customer of its obligations under the Agreement.
Equipment Loss. In the event of an Equipment Loss or if Equipment is not functioning properly during the Subscription Term, Company will provide Customer with replacement Equipment, provided that Customer promptly notifies Company, returns the damaged Equipment to Company as instructed by Company, and pays the Equipment Loss Fee for such replacement Equipment, as and if applicable. Without the prior written consent of Company, Customer shall not make any alterations, modifications or attachments to the Equipment. All required alterations, modifications and repairs to the Equipment shall be performed solely by Company (or at Company’s expressly appointed repair facility).
Equipment Ownership. As between the Parties, Company shall own, hold, and retain all right, title, and interest to the Equipment, and any and all additions, improvements, repairs, replacements, or modifications thereto. Customer acknowledges and understands that it neither owns nor acquires any ownership rights in the Equipment, except as expressly granted in the Agreement. Customer acknowledges that Company may request return of the Equipment at any time, whether for an upgrade, to address a deprecated component, or for any other reason.
Equipment Usage Restrictions. Customer shall only use the Equipment and/or SIM card installed and delivered by Company with the Barrel to gain access to the Services and the Platform, and shall comply with all relevant instructions or directives regarding the use of the Services, the Platform, the Equipment, and the SIM card as well as any legislation and regulations imposed by any other competent authority. Customer agrees not to open, explore, tamper with, or connect the Barrel to any network, whether for the purposes of obtaining Internet access or any other purpose. Customer acknowledges that it has no ownership right, title, or interest in the hardware and firmware embedded in the Equipment. Customer shall at all times keep the Equipment and the SIM card included therein in its possession or under its control, shall take reasonable care to protect it from loss or damage, and shall not allow the Equipment and/or SIM card to be removed from the premises in which it was installed. Customer will only allow competent and authorized persons to operate the Equipment at Customer’s expense and only for the purposes and the manner in which it was designed and/or intended. Company reserves the right to inspect and examine the Equipment at all reasonable times and arrange for Company to be admitted to the premises for this purpose. Customer shall not allow any removal or obliteration of identification marks or serial numbers in and/or on the SIM card or Equipment and shall timely notify Company of any changes (including expansions or alterations) to the premises or installation that may impact the Equipment. Customer acknowledges and agrees that such changes may necessitate a site visit, at the relevant charge, to enable Company to assess whether any changes to the Equipment are required as a consequence of such changes.
Equipment Liens. Customer will not, directly or indirectly, or voluntarily or involuntarily, sell, assign, lease, sublease, rent, or transfer the Equipment to any third party or obtain or permit any lien, security interest or other encumbrance to apply to the Equipment, without obtaining Company’s prior written consent in each case. Customer will cooperate with Company in protecting and securing Company’s rights and interest relating to the Equipment upon request and hereby grants Company a security interest in and to the Equipment and authorizes Company to file any and all such claims as Company deems necessary to protect such interest, without further notice.
Return of Equipment. Within fifteen (15) days after the expiration or termination of the Agreement, Customer shall, at its expense, return the Equipment to Company in the same condition as such Equipment was originally received by Customer, ordinary wear and tear excepted, or pay the amounts indicated in the Order. Customer will be charged and shall pay the Equipment Recovery Fee and, if Company after reasonable commercial efforts is unable to recover the Equipment, Customer will be charged and shall pay the Unreturned Equipment Replacement Fee per Barrel for any Barrels not returned upon termination in accordance with this Section 3.6.
Data.
Customer Data. As between the Parties, Customer retains all of its right, title and interest in and to all data it or its Authorized Users enter into the Platform (“Customer Data”) and represents and warrants that it has obtained all consents necessary for Company to use and process the Customer Data in accordance with the Agreement and applicable law and regulations. Customer will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy or intellectual property rights, includes malicious code, or that will interfere with the integrity of the Platform.
Company Rights and Obligations. Customer hereby grants Company a royalty-free, paid-in-full, non-transferable, non-exclusive license to use and process such Customer Data to provide the Services and otherwise fulfil its obligations and exercise its rights under the Agreement. This includes the right for Company to engage third-party data processors and telecommunication, networking, and cloud providers. Company shall treat Customer Data as Confidential Information in accordance with Section 8 (Confidentiality), and will take commercially reasonable actions to protect the security and integrity of said Customer Data. Company may aggregate and anonymize any data or information relating to Customer Data or the use of the Services or Platform to monitor, improve, or expand the Services, Platform or Company’s commercial offerings notwithstanding anything to the contrary. As between the Parties, any such aggregated and anonymized data or information provided or processed by Company is owned by Company. Aggregated and anonymized data will not include personally identifiable data.
End of Subscription Term; Data Transfer. Upon written request by Customer within sixty (60) days of the effective date of termination or expiration of the Agreement (or otherwise upon Customer’s reasonable request during the Subscription Term), and provided all outstanding fees have been paid, Company will transfer a copy of Customer Data in Company’s possession or control to Customer. After such sixty (60) day period, Company shall have no obligation to maintain any Customer Data or to provide any Customer Data to Customer; provided, however, that Company may agree to store Customer Data for more than sixty (60) days following the termination or expiration of the Subscription Term for a mutually agreed storage fee payable in advance by Customer for the applicable agreed upon storage period, and subject to any additional terms in Company’s discretion to be executed and delivered by Customer.
Fees.
Fees and Expenses. In consideration for the rights and subscriptions granted to Customer under an Order, Customer shall pay to Company the fees and expenses as set forth in the Order. After the Initial Subscription Term, fees are subject to change by Company once per year thereafter, upon thirty (30) days’ notice to Customer, to the extent Company’s list prices change. For clarity, at all times, the fees remains subject to adjustment in accordance with Section 5.5 (Software Audit).
Invoicing & Payment. Unless otherwise provided in an Order, all such fees and expenses shall be billed annually in advance and shall be due and payable within thirty (30) days after an invoice is issued by Company. Customer is responsible for maintaining complete and accurate billing and contact information with Company.
Overdue Payments. Any portion of any fees due hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In the event Company incurs any costs (including reasonable attorney’s fees) from efforts collecting overdue fees from Customer, Customer agrees to pay such costs.
Taxes. Company’s fees do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, Equipment, Platform, Documentation, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes. Customer is responsible for paying all such taxes associated with its purchases hereunder, excluding taxes based on Company’s net income or property. If Company has the legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
Software Audit. During a Subscription Term, and for twelve (12) months after its expiry or termination, Customer will take reasonable steps to maintain complete and accurate records of its use of the Services and the Platform sufficient to verify compliance with the Agreement and the number of workers that Customer is tracking using the Services and the Platform (“Verification Records”). Upon at least fifteen (15) days advance notice, and no more than once per calendar quarter, Customer will provide Company and, as applicable, its auditors access to the Verification Records and any applicable books, systems, and accounts during Customer’s normal business hours. In the event such audit reveals that Customer has used the Services and the Platform to track workers in excess of the number of workers for which Customer is paying Company, Customer shall promptly pay to Partner an amount equal to the difference between the fees actually paid and the fees that would have been paid by Customer had Customer paid for the number of workers it used the Services and Platform to track during the relevant period(s).
Suspension. If Customer’s account is more than thirty (30) days overdue, Company shall have the right, in addition to its remedies under the Agreement or pursuant to applicable law, to suspend Customer’s use of the Services, Equipment and Platform and/or repossess the Equipment, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due. In the event that Company exercises it right to repossess the Equipment, Customer shall make such Equipment available, or cause such Equipment to be made available, to Company within twenty-four (24) hours of receipt of written notice from Company of its intent to repossess the Equipment, and if the Equipment is no longer accessible directly by Customer on any premises where Customer utilized the Equipment, Customer shall promptly use commercially reasonable efforts to obtain an appropriate right of access in favor of Company to repossess the Equipment and shall provide Company with all related contact information and location address for such purposes.
Representations, Warranties and Disclaimers
Mutual. Each Party represents and warrants to the other that: (i) it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, and has full corporate or other power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate, partnership or governmental action; (iii) this Agreement is legally binding upon it, enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; (iv) it is not relying upon any representations of the other Party other than those expressly set forth in the Agreement; (v) it has entered into the Agreement as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise), with a full understanding of the terms and risks of the same; and (vi) it is not bound by any agreement that would preclude or hinder its execution, delivery, or performance of the Agreement.
By Customer. Customer represents and warrants that: (i) it, its Authorized User and its subcontractors will use the Services and Platform in accordance with this Agreement, applicable laws and regulations, including labor and employment laws relating to Authorized Users and its business; (ii) it has or has obtained any and all rights to place or have placed the Equipment on the premises where Customer places or has the Equipment placed for used in connection with the Services; (iii) all permits, authorizations, and approvals (“Permits”) required for Customer to conduct its business as currently conducted and to lease and use the Equipment and deploy and operate it on the applicable premises have been obtained by Customer and are valid and in full force and effect, and that all fees and charges with respect to such Permits as of the Effective Date and any Order have been paid in full; and (iv) no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse, or limitation of any such Permits.
Performance Warranty. Company warrants that the Services and Platform (including Equipment) shall operate as described in the then-current Documentation in all material respects during the Subscription Term. The foregoing warranty does not apply to failures caused by Customer’s or its Authorized Users’ breach of the Agreement, negligence, misconduct, or mis-use. Customer will timely notify Company of any known non-conformance to the foregoing warranty. Company’s only obligation under the warranty in this Section 6.3 (Performance Warranty) is to use commercially reasonable efforts to correct any failure to so perform, or if such correction is not possible in a commercially reasonable timeframe and such failure is material, then Customer may elect to terminate for such uncured material breach and receive a refund of any fees paid for the specific non-conforming Services and/or Platform during the periods of non-conformance and refund any pre-paid fees for Services not provided. This Section 6.3 (Performance Warranty) sets forth Customer’s sole and exclusive remedy for a breach of this warranty.
Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 6 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE PLATFORM AND THE EQUIPMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND COMPANY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE USE OF REASONABLE SKILL AND CARE, NON-INFRINGEMENT, AVAILABILITY, SECURITY OF COMPANY’S AND/OR CUSTOMER’S NETWORK OR COMMUNICATIONS, SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE SERVICES, THE PLATFORM OR THE EQUIPMENT WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, HARDWARE OR SERVICES. COMPANY’S LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE OR EQUIPMENT WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN COMPANY OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE. THE PARTIES AGREE THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE IF THE SOFTWARE, THE SUBSCRIPTION SERVICES OR THE PROFESSIONAL SERVICES ARE SUITABLE FOR CUSTOMER’S REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
Limitations of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR LOSS OF DATA, INCOME, PROFIT OR SAVINGS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY PARTY, INCLUDING THIRD PARTIES, EVEN IF COMPANY OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. COMPANY’S ENTIRE LIABILITY FOR ALL CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE PLATFORM, THE EQUIPMENT AND ANY RELATED SERVICES, IF ANY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO AND WILL NOT EXCEED, IN THE AGGREGATE THE AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP. THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
Confidentiality.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Company’s Confidential Information includes the Services, the Platform, the Documentation and information regarding features, functionality and performance of the Platform; and Confidential Information of each Party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information (except for Customer Data or the Services or Platform) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Ownership.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Proprietary Items, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. The Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights in or to any Proprietary Items are transferred to Customer under the Agreement. As between Company and Customer, at all times Company will own all intellectual property rights (including copyright) in and to (i) the Proprietary Items; (ii) any software (other than any third party components) to which access may be provided by means of the Proprietary Items; (iii) all upgrades, enhancements and modifications to the Proprietary Items and (iv) any software, applications, inventions or other technology developed in connection with any of the Proprietary Items. Customer will execute and deliver (or cause its Authorized Users and other representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Company’s rights described above and the intent of this Section.
Customer Data. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company shall not access Customer’s user accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request.
Suggestions. Company hereby irrevocably grants to Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Proprietary Items any suggestions, enhancement requests, recommendations or other feedback that Customer or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to the Agreement or their use of the Services or Platform.
Indemnification.
By Company. Company shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third-party claim that any use of, or access to, the Proprietary Items by Customer as expressly authorized under the Agreement infringes or misappropriates, as applicable, any U.S. or Canadian patent issued as of the Effective Date or any Intellectual Property Rights. Notwithstanding the foregoing, Company shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (a) the combination, operation, or use of the Proprietary Items with products, services, deliverables, materials, technologies, business methods or processes not furnished by Company, (b) modifications which were not made by Company, or (c) Customer’s breach of the Agreement or use of the Proprietary Items other than in accordance with the Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this 1010.1, or in the event that Company believes that such a claim is likely, Company may, at its option (i) modify the Proprietary Item so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or Documentation, (ii) obtain a license to the applicable third-party intellectual property, or (iii) terminate the Agreement (or the applicable Orders) on written notice to Customer and refund to Customer any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Company’s entire liability and Customer’s sole remedy for any infringement or misappropriation.
By Customer. Customer shall defend, indemnify, hold Company harmless from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of (i) any third-party claim resulting from or relating to the IP Exclusions, (ii) Customer’s breach of its representations or warranties in the Agreement, (iii) Customer’s relationship with its Authorized Users (including claims for lost wages or employment practices), (iv) Equipment Loss that is the result of Customer’s or its Authorized Users, or its any of Customer’s subcontractor’s negligence or willful misconduct, and (v) any events which give rise to Company exercising its repossession rights related to Equipment as set forth in these General Terms, including any and all collection and recovery costs.
Procedures. The foregoing indemnification obligations are conditions upon the indemnified party providing (i) prompt written notice of such claim to the indemnifying party, (ii) authority to control and direct the defense and/or settlement of such claim, and (iii) such information and assistance as reasonably requested by the indemnifying party in connection with such defense and/or settlement. In any action for which the indemnifying party provides defense on behalf of the indemnified party, the indemnifying party may participate in such defense at its own expense by counsel of its choice.
Termination.
Termination for Cause or Bankruptcy. Either Party may terminate the Agreement (including any or all Orders forming a part of the Agreement) immediately on giving notice in writing to the other Party if the other Party (a) commits a material breach and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach, (b) files for bankruptcy, (c) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, (d) makes an assignment for the benefit of all or substantially all of its creditors, or (e) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.
Orders. Orders will be terminated if the Agreement is terminated or as otherwise provided in the applicable Order. The Agreement will be deemed terminated if there are no active Orders or all Subscription Terms have expired or terminated.
Effect of Termination. Upon any termination or expiration of the Agreement, whether under this Section 11 or otherwise, Company shall perform its Customer Data transfer obligations under Section 4.3 and Customer shall (a) discontinue all access and use of all Proprietary Items, (b) promptly return to Company the Equipment and all copies of the Documentation and any other Proprietary Items then in Customer’s possession or control, and (c) give written notice to Company certifying that all copies of Proprietary Items have been permanently deleted or returned. Customer shall remain liable for all payments due to Company with respect to the period ending on the date of termination. For any termination other than a termination for good cause by Customer in accordance with Section 11.1, the balance of all remaining subscription fees relating to the then current Subscription Term will be due and payable. The provisions of Sections 2.3, 3.2, 3.3, 3.4, 3.5, 3.6, 4, 5, 6.3, 6.4, 7, 8, 9, 10, 11.3 and 12 shall survive any termination or expiration of the Agreement as well as any other disclaimers or provisions that contemplate survival.
Other Provisions.
Notice. All notices, consents and other communications under or regarding the Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
Assignment. The Agreement shall bind, benefit and be enforceable by and against Company and Customer and, to the extent permitted hereby, their respective successors and assigns. Except as otherwise provided below, neither Party may assign any of its rights under the Agreement, and any attempt at such assignment will be void without the other Party’s prior written consent, which consent will not be unreasonably withheld. Company may assign the Agreement in connection with any merger, reorganization, acquisition or sale of all or substantially all of its asset or stock without Customer’s consent. If Customer is subject to a merger, reorganization, acquisition or sale of all or substantially all of its asset or stock, Company will consent to such assignment if (a) the proposed assignee’s use of the Services and Platform does not materially change the usage of the Service or Platform prior to such assignment or if such assignee agrees to pay a reasonable fee for any increased usage based on Company’s then current pricing, (b) Customer is in compliance with the Agreement, and (c) such proposed assignee’s credit rating is equal to or better than Customers.
Export Laws and Use Outside of the United States. Customer shall comply with the export related laws and regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority.
Relationship. The relationship between the Parties under the Agreement is that of independent contractors and not partners, joint venturers or agents.
Entire Understanding. The Agreement, which includes and incorporates Orders, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of the Agreement. In the event of any conflict between this Agreement and an Order, the Agreement shall govern.
Modification and Waiver. No modification of the Agreement, and no waiver of any breach of the Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. The Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of the Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of the Agreement.
Severability. If any portion of any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from the Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of the Agreement will not be affected or impaired, and (c) the Agreement will be amended in order to effectuate, to the maximum extent allowable by law, the original intent of such provision.
Governing Law. The Agreement will be governed by the laws of the State of Florida, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. In the event of a dispute, the parties submit to the exclusive jurisdiction of the Federal and state courts sitting in Miami, Florida.
Dispute Resolution. Any dispute arising out of or related to the Agreement (including any Order and including whether the claims asserted can be arbitrated) shall be referred to and finally determined through binding and confidential arbitration (“Arbitration”) at a mutually agreed upon location in Miami, Florida, USA. Arbitration shall be subject to the FAA, and not any state arbitration law. Arbitration shall be conducted before one (1) commercial arbitrator with substantial experience in resolving information technology commercial contract disputes from the AAA, who shall be selected in accordance with AAA Rules and Procedures (defined below). As modified by these Agreement, and unless otherwise agreed upon by the Parties in writing, Arbitration will be governed by the AAA’s Commercial Arbitration Rules and any Expedited Rules thereof (the “AAA Rules”). Arbitration, its proceedings, and all pleadings and written evidence will be in the English language and the American variation thereof. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, unless otherwise expressly required under applicable law. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the Parties without appeal or review except as permitted by Florida law or the FAA. Each Party shall bear its own fees and costs related to any Arbitration, and the Parties shall equally bear the fees and costs of Arbitration under the AAA Rules. EACH PARTY VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT. In the event of any non-arbitrable matters pursuant to applicable law, or in respect of equitable relief contemplated under Section 12.10, which arise out of or related to any disputes under this Agreement, the Parties agree that such matters shall be exclusively submitted to and resolved by the courts in and for Miami-Dade County, Florida, in Miami, Florida, and the Parties irrevocably waive any objection to jurisdiction or venue, including on the basis of inconvenient forum, before such courts.
Equitable Remedies. Customer acknowledges that the Services and Platform provided by Company under this Agreement is proprietary and Company has legitimate business interests in protecting Proprietary Items to the fullest extent of applicable law, and acknowledges and agrees that (a) a breach or threatened breach by Customer of any of its obligations under the Agreement would give rise to irreparable harm to Company for which monetary damages would not be an adequate remedy, and (b) if a breach or a threatened breach by Customer of any such obligations occurs, Company will, in addition to any and all other rights and remedies that may be available to it at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement (i) to post a bond or other security, or (ii) to prove actual damages or that monetary damages will not afford an adequate remedy. Customer agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in each case, consistent with the terms of this Section 12.10.
Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of the Agreement due to any failure to perform its obligations under the Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies, epidemic, pandemic or any other cause which could not have been prevented by the non-performing Party with reasonable care.
Use of Customer’s Name. Customer hereby authorizes Company to use Customer’s name in any routine list of Company’s customers.
