PERCEPTIVITY MASTER SERVICES SOFTWARE SUBSCRIPTION AGREEMENT

 

This Perceptivity Master Services Software Subscription Agreement (the “Agreement"), last updated on ______________ (the “Effective Date"), is by and between BEAR COGNITION, INC, a Delaware Incorporated company with offices located at 116 North West St., Suite 200,  Raleigh, NC 27603524 Broadway, Suite 206, New York, NY 10012 ("Service Provider") and Customer (as defined below).

 

WHEREAS, Customer wishes to procure from Service Provider the hosted software services and other related services described herein, and Service Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF SERVICE PROVIDER’S SERVICES.

 BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

1. Definitions.

 

"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

 

"Action" has the meaning set forth in Section 12.1.

 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.      

 

"Agreement" has the meaning set forth in the preamble.

 

"Authorized User" means each of the Customer's employees or agents authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.

 

"Backup Policy" has the meaning set forth in Section 5.

 

"Confidential Information" has the meaning set forth in Section 9.1.

 

"Customer" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have executed or otherwise entered into Order Forms relating to Services.

 

"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.

 

"Customer Failure" has the meaning set forth in Section 4.2.

 

"Customer Indemnitee" has the meaning set forth in Section 12.1.

 

"Customer Systems" means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

 

"Disclosing Party" has the meaning set forth in Section 9.1.

 

"Documentation" means any manuals, instructions or other documents or materials that the Service Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

 

"Effective Date" has the meaning set forth in the preamble.

 

"Fees" has the meaning set forth in Section 7.1.

 

"Force Majeure Event" has the meaning set forth in Section 14.1.

 

"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

 

"Hosted Services" has the meaning set forth in Section 2.1.

 

"Indemnitee" has the meaning set forth in Section 12.3.

 

"Indemnitor" has the meaning set forth in Section 12.3.

 

"Initial Term" has the meaning set forth in Section 10.1.

 

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

 

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

 

"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

 

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Service Provider and Customer or any of Service Provider’s Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. 

 

"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.

 

"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

 

"Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all "nonpublic personal information" as defined under the Gramm-Leach-Bliley Act, "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996, "Personal Data" as defined in the EU General Data Protection Regulation (GDPR) or Data Protection Directive (Directive 95/46/EEC), and all rules and regulations issued under any of the foregoing.

 

"Privacy and Security Programolicy" has the meaning set forth in Section 6.1.

 

"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing" and “Processed" have correlative meanings.

 

"Service Provider" has the meaning set forth in the preamble.

 

"Provider Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Service Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Service Provider or its designee.

 

"Provider Indemnitee" has the meaning set forth in Section 12.2.

 

"Provider Materials" means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Service Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Service Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

 

"Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Service Provider or any Subcontractor.

 

"Provider Systems" means the information technology infrastructure used by or on behalf of Service Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Service Provider or through the use of third-party services.

 

"Receiving Party" has the meaning set forth in Section 9.1.

 

"Reimbursable Expenses" has the meaning set forth in Section 7.3.

 

"Renewal Term" has the meaning set forth in Section 10.2.

 

"Representatives" means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

 

"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

 

"Service Allocation" has the meaning set forth in Section 3.4.

 

"Service Provider" has the meaning set forth in the preamble.

 

"Service Software" means the Service Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Service Provider provides remote access to and use of as part of the Services.

 

"Services" has the meaning set forth in Section 2.1.

 

"Specifications" means the specifications for the Services as described by Service Provider on Service Provider’s website and, to the extent consistent with and not limiting of the foregoing, the specifications described in the Documentation.

 

"Subcontractor" has the meaning set forth in Section 2.5.

 

"Term" has the meaning set forth in Section 10.2.

 

"Territory" means the United States.

 

"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Service Provider.

 

2. Services.

 

2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Service Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services ordered by Customer under an Order Form and made available online by Service Provider (collectively, the “Services") in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:

 

(a) Service downtime or degradation due to a Force Majeure Event;

 

(b) any other circumstances beyond Service Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and

 

(c) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Hosted Services as permitted by this Agreement.

 

2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

 

(a) Service Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and

 

(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Service Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

 

2.3 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The Customer's service manager shall be listed on the applicable Order Form or Customer’s Account Settings. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.

 

2.4 Changes. Service Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Service Provider’s services to its customers, (ii) the competitive strength of or market for Service Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.4.

 

2.5 Subcontractors. Service Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor").

 

2.6 Suspension or Termination of Services. Service Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Service Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Service Provider to do so; or (b) Service Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Service Provider’s other rights or remedies, whether at law, in equity or under this Agreement.

 

2.7 Additional Professional Services. The Services described hereunder are related solely to providing the Service Software.  In the event that Customer seeks to engage Service Provider to perform additional professional analytics services, the parties shall execute Service Provider’s Professional Services Addendum and a Statement of Work describing the scope of terms of the additional professional services to be provided and corresponding additional fees to be charged, the collective terms of which shall be deemed incorporated hereto.

 

3. Authorization and Customer Restrictions.

 

3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Service Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Service Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, the conditions and limitations set forth in this Agreement, and Service Provider’s End User License Agreement (“EULA”). This authorization is non-exclusive and other than as may be expressly set forth in Section 15.8, non-transferable.

 

3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Service Provider and the respective rights holders in the Third Party Materials.

 

3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

 

(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

 

(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;

 

(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

 

(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

 

(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Service Provider’s provision of services to any third party, in whole or in part;

 

(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;

 

(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Service Provider customer), or that violates any applicable Law;

 

(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Service Provider’s detriment or commercial disadvantage; or

 

(j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.

 

3.4 Service Use and Data Storage. Order Forms shall set forth a schedule of Fees for designated levels of Hosted Service usage and data storage (each a “Service Allocation"), beginning with the Fees payable by Customer for the levels of Hosted Service usage and data storage in effect as of the Effective Date. Service Provider will use commercially reasonable efforts to notify Customer in writing if Customer has reached 80 percent of its then current Service Allocation and Customer may increase its Service Allocation and corresponding Fee obligations in accordance with the rates described in the applicable Order Form. If Customer exceeds its Service Allocation by more than 20 percent for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees set forth in the applicable Order Form. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that:

 

(a) Service Provider has no obligation to permit Customer to exceed its then-current Service Allocation; and

 

(b) Customer is not entitled to any Service Level Credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Hosted Services fail to meet the Availability Requirement during such period.

4. Customer Obligations.

 

4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Service Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Service Provider may reasonably request to enable Service Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

 

4.2 Effect of Customer Failure or Delay. Service Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure").

 

4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Service Provider of any such actual or threatened activity.

 

4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Service Provider or any Subcontractor. In the event of a violation of this Section 4.4, Service Provider will be entitled to liquidated damages equal to the compensation paid by Service Provider to the applicable employee or contractor during the prior twelve (12) months, which the parties stipulate is a fair and reasonable approximation of the damages Service Provider would suffer in the event of such a breach.

 

5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. SERVICE PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

 

6. Security.

 

6.1 Provider Systems and Security Obligations. Service Provider will employ security measures in accordance with Service Provider’s data privacy and security programolicy as amended from time to time ("Privacy and Security Programolicy").

 

6.2 Data Breach Procedures. Service Provider maintains a data breach plan in accordance with the criteria set forth in Service Provider’s Privacy and Security Programolicy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach" (as defined in such plan).

 

6.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data"). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

 

6.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

 

6.5 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.

 

7. Fees; Payment Terms.

 

7.1 Fees. Customer shall pay Service Provider the fees set forth in all applicable Order Forms ("Fees") in accordance with this Section 7.

 

7.2 Fee Increases. Service Provider may increase Fees no more than once annually for any contract year after the first contract year of the Term by providing written notice to Customer at least 60 calendar days prior to the commencement of that contract year, and all applicable Order Forms will be deemed amended accordingly.

 

7.3 Reimbursable Expenses. Customer shall reimburse Service Provider for pre-approved out-of-pocket expenses incurred by Service Provider in connection with performing the Services ("Reimbursable Expenses").

 

7.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Service Provider’s income.

 

7.5 Payment. Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit card, ACH, or check. Customer shall make payments to the address or account specified in the applicable Order Form or such other address or account as Service Provider may specify in writing from time to time.  If your last payment was made via credit card, any Fee for a Renewal Term will be charged to the last credit card used by you.  If you would like the payment for the renewal to be made to a different credit card or if you do not wish to renew the subscription, you agree to make the changes to your account settings. By providing credit card information to Service Provider, Customer authorizes Service Provider to charge such credit card for all purchased Services listed on applicable Order Forms for the initial subscription term and all applicable renewal terms, which charges shall be made in advance.

 

7.6 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

 

(a) Service Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;

 

(b) Customer shall reimburse Service Provider for all reasonable costs incurred by Service Provider in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and

 

(c) if such failure continues for 30 days following written notice thereof, Service Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

 

7.7 No Deductions or Setoffs. All amounts payable to Service Provider under this Agreement shall be paid by Customer to Service Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

 

8. Intellectual Property Rights and Data Protection.

 

8.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Service Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) and aggregated, deidentified, or anonymized data from Customer which may not be readily reidentified to Customer are expressly reserved by Service Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Service Provider an assignment of all right, title and interest in and to such datathe Resultant Data, including all Intellectual Property Rights relating thereto.

 

8.2 Customer Data. As between Customer and Service Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.

 

8.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Service Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Service Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.

 

8.4 Feedback.  Customer agree that Service Provider may freely use user feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Service Provider a perpetual, worldwide, fully transferable, sub licensable, non-revocable, fully paid-up, royalty free license to use the feedback you or your Authorized Users provide to Service Provider in any way.

 

8.5 Data Processing Addendum.  In the course of providing the Services described herein, Service Provider will act as “processor” to Customer who may act either as “controller” or “processor” with respect to Customer Data (as each term is defined in the European Union’s General Data Protection Regulation (“GDPR”)). Accordingly, Customer and Service Provider agree to be bound by the terms of Service Provider’s “Data Protection Addendum - Subscription,” the terms of which shall be deemed incorporated herein by reference.

 

 

9. Confidentiality.

 

9.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party") may disclose or make available Confidential Information to the other party (as the “Receiving Party"). Subject to Section 9.2, “Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential". Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms of this Agreement are the Confidential Information of Service Provider.

 

9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

 

9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

 

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

 

(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3;

 

(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

 

(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.

 

9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

 

10. Term and Termination .

 

10.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until twelve (12) months from such date (the “Initial Term").

 

10.2 Renewal. This Agreement will automatically renew for terms of twelve (12) additional successive months unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term" and, collectively, together with the Initial Term, the “Term").

 

10.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

 

(a) Service Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Service Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 6.3 (Prohibited Data) or Section 9 (Confidentiality).

 

(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and

 

(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

10.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

 

(a) except as otherwise provided herein, all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;

 

(b) each  party shall: (a) promptly return to the other party, or certify the destruction of any of the following information of  the other party received in connection with the performance of this Agreement or the Services: (i) all  Confidential Information; and, (ii) any other data, programs, and materials ; and, (b) return to the other  party, or permit the other party to remove, any properties of the other party then situated on such  party’s premises.Service Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Service Provider directly or indirectly controls, provided that, for clarity, Service Provider’s obligations under this Section 10.4(b) do not apply to any Resultant Data;

 

(c) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Service Provider, or at Service Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Service Provider’s Confidential Information; (ii) permanently erase all Provider Materials and Service Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Service Provider in a signed and notarized written instrument that it has complied with the requirements of this Section 10.4(c);

 

(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Service Provider may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iii) Service Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iiiv) all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;

 

(e) Service Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;

 

(f) if Customer terminates this Agreement pursuant to Section 10.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Service Provider will refund to Customer Fees paid in advance for Services that Service Provider has not performed as of the effective date of termination;

 

(g) if Service Provider terminates this Agreement pursuant to Section 10.3(a) or Section 10.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Service Provider’s invoice therefor.; and

 

(h) provided that this Agreement has not been  terminated by Service Provider due to Customer’s failure to pay any undisputed amount due Service  Provider, Service Provider shall retain Customer's Data for a period of up to ninety (90) calendar days and will provide to Customer and/or to the supplier selected by Customer (the “Successor Service Provider”), at Customer’s sole cost and  expense, assistance reasonably requested by Customer in order to effect the orderly transition of the  applicable Services, in whole or in part, to Customer or to Successor Service Provider (such  assistance shall be known as the “Termination Assistance Services”) during the ninety (90) calendar  day period following the expiration or termination of this Agreement (the “Termination Assistance Period”).

 

10.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 9, Section 10.4, this Section 10.5, Section 11, Section 12, Section 13 and Section 15.

11. Representations and Warranties.

 

11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:

 

(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

 

(b) it is duly licensed, authorized, or qualified to do business in every jurisdiction in which a license, authorization, or qualification is required for the ownership or leasing of its assets  or the transaction of business of the character transacted by it, except where the failure to be so  licensed, authorized, or qualified would not have a material adverse effect on its ability to fulfill its  obligations under this Agreement;

 

(c) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;

 

(dc) it has the financial capacity to perform its obligations under this Agreement;

 

(e) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

 

(fd) the execution, delivery, and performance of this Agreement has been duly authorized by it and this  Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in  accordance with its terms, except as the enforceability thereof may be limited by bankruptcy,  insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by  general equitable principles;

 

(g) it shall comply with all applicable federal, state, local, international, or other laws and regulations  applicable to the performance by it of its obligations under this Agreement and shall obtain all  applicable permits and licenses required of it in connection with its obligations under this Agreement; and

(h) there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if  decided unfavorably to it, would reasonably be expected to have a potential or actual material  adverse effect on its ability to fulfill its obligations under this Agreement.when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

 

11.2 Additional Service Provider Representations, Warranties and Covenants. Service Provider represents, warrants and covenants to Customer that Service Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

 

11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Service Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Service Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

 

11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2 AND SECTION 11.3, ALL SERVICES AND SERVICE PROVIDER MATERIALS ARE PROVIDED “AS IS" AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

 

12. Indemnification.

 

12.1 Service Provider Indemnification. Service Provider shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action") by a third party (other than an Affiliate of a Customer Indemnitee) alleging that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

 

(a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Service Provider;

 

(b) modification of the Services or Provider Materials other than: (i) by or on behalf of Service Provider; or (ii) with Service Provider’s written approval in accordance with Service Provider’s written specification;

 

(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Service Provider; or

 

(d) act, omission or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c) or Section 12.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.

 

12.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Service Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any:

 

(a) Customer Data, including any Processing of Customer Data by or on behalf of Service Provider in accordance with this Agreement;

 

(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Service Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Service Provider;

 

(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or

 

(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

 

12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee") shall cooperate with the other party (the “Indemnitor") at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

 

12.4 Mitigation. If any of the Services or Provider Materials are, or in Service Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Service Provider may, at its option and sole cost and expense:

 

(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;

 

(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or

 

(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that if such termination occurs prior to two (2) years after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 10.4, Customer will be entitled to a refund of ten percent (10%) of fees paid prior to termination.

 

THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SERVICE PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

  

13. Limitations of Liability.

 

13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL SERVICE PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

13.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SERVICE PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $100.00. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

13.3 Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Service Provider’s obligations under Section 12 (Indemnification) or liability for Service Provider’s gross negligence or willful misconduct.

 

14. Force Majeure.

 

14.1 No Breach or Default. In no event will Service Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Service Provider’s reasonable control (a “Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.

  

14.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Service Provider shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

  

15. Miscellaneous.

 

15.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

 

15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Service Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Service Provider’s current or former customers of Service Provider in promotional and marketing materials.

 

15.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the address indicated on the applicable Order Form (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4).

 

Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

 

15.5 Interpretation. For purposes of this Agreement: (a) the words “include," “includes" and “including" are deemed to be followed by the words “without limitation"; (b) the word “or" is not exclusive; (c) the words “herein," “hereof," “hereby," “hereto" and “hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

 

15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

 

15.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

 

15.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Service Provider’s prior written consent, which consent Service Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Service Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

 

15.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

15.10 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

15.11 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

15.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of North CarolinaNew York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolinaew York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of North CarolinaNew York in each case located in Wake County, North CarolinaNew York City and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

 

15.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

 

15.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, Section 4.3 or Section 6.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

 

15.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

 

15.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

 

END USER LICENSE AGREEMENT

 

Perceptivity Software End User License Agreement

 

This End User License Agreement, including the Services and Fees Schedule which by this reference is incorporated herein (this “Agreement”), is a binding agreement between BEAR COGNITION, INC (“Licensor”) and the person or entity identified on the Services and Fees Schedule as the licensee of the Software (“Licensee”).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY EXECUTION OF THE PERCEPTIVITY SOFTWARE SUBSCRIPTION AGREEMENT, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

1.  Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Authorized Users” means each of the Licensee's employees or agents authorized to use the Services pursuant to the terms and conditions of the Perceptivity Software Subscription Agreement.

“Documentation” means user manuals, technical manuals, and any other materials provided or made available to Licensee in any form or medium and which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Licensee” has the meaning set forth in the preamble.

“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement and the Perceptivity Software Subscription Agreement.

 

“Licensor” has the meaning set forth in the preamble.

 

“Services and Fees Schedule” means the Services and Fees Schedule filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement, attached to the Perceptivity Software Subscription Agreement as Schedule 1.

 

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

 

“Software” means the software programs for which Licensee is purchasing a license, as expressly set forth in the Services and Fees Schedule.

 

“Term” has the meaning set forth in Section 9.

 

“Third Party” means any Person other than Licensee or Licensor.

 

“Update” has the meaning set forth in Section 6(b).

 

2. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

(a) Download and install in accordance with the Documentation one (1) copy of the Software on each of the designated computers set forth on the Services and Fees Schedule owned or leased, and controlled by, Licensee. Unless the Services and Fees Schedule expressly states that Licensee is purchasing a network license, each such computer shall be for a single Authorized User. All copies of the Software made by the Licensee:

(i)  will be the exclusive property of the Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

(iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

(b)  Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes. Such use is permitted only on the computer on which the Software is installed, at the physical location thereof and not via any remote access or other network.

 

(c)  Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be downloaded and installed in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:

(i)  will be the exclusive property of Licensor;

(ii)  will be subject to the terms and conditions of this Agreement; and

 

(iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

 

(d)  Transfer any copy of the Software from one computer to another, provided that:

 

(i)  the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2(a).

3.  Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

 

(a)  use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

 

(b)  provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;

 

(c)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

 

(d)  combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

 

(e)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

 

(f)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; 

 

(g)  except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;

 

(h)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

 

(i)  use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

 

(i)  power generation systems;

 

(ii)  aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;

 

(iii)  safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and

 

(iv)  military or aerospace applications, weapons systems, or environments;

 

(j)  use the Software or Documentation in violation of any law, regulation, or rule; or

 

(k)  use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

 

4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

 

5. Compliance Measures.

 

(a)  The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

 

(b)  During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement. The Licensee shall reasonably cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.

 

(c)  If any of the measures taken or implemented under this Section 5 determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then:

 

(i)  Licensee shall, within ten (10) days following the date of Licensor’s written notification thereof, pay to Licensor the retroactive License Fees for such excess use and, unless Licensor terminates this Agreement pursuant to Section 5.1(d)

(iii), obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (x) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement). 

 

(ii)  If the use exceeds or exceeded the use permitted by this Agreement by more than 25%, Licensee shall also pay to Licensor, within ten (10) days following the date of Licensor’s written request therefor, Licensor’s reasonable costs incurred in conducting the audit.

 

(iii)  If the use exceeds or exceeded the use permitted by this Agreement, Licensor shall also have the right in its sole discretion to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.

 

Licensor’s remedies set forth in this Section 5(d) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.]

 

6.  Maintenance and Support.

 

(a)  Subject to Section 6(c), the license granted hereunder entitles Licensee to the basic software maintenance and support services described in the Perceptivity Software Subscription Agreement:

 

(i)  for the term set forth in the Perceptivity Software Subscription Agreement; and

 

(ii)  thereafter, solely if Licensee purchases additional support services.

 

Such support services shall be provided on the terms and conditions set forth in such separate support services agreement.

(b)  Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

 

(c)  Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide maintenance and support services, including Updates:

 

(i)  for any but the most current version or release of the Software;

 

(ii)  for any copy of Software for which all previously issued Updates have not been installed;

 

(iii)  if Licensee is in breach under this Agreement; or

 

(iv)  for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Licensor in writing.

 

7.  Collection and Use of Information.

 

(a)  Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

 

(i)  the provision of maintenance and support services; and

 

(ii)  security measures included in the Software as described in Section 5. 

 

(b)  Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

 

(i)  improving the performance of the Software or developing Updates; and

 

(ii)  verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

 

8.  Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights. 

 

9.  Term and Termination.

 

(a)  This Agreement and the license granted hereunder shall remain in effect until terminated as set forth in the Perceptivity Software Subscription Agreement (the “Term”).

 

10.  Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.

 

11.  US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

 

12.  Miscellaneous.

 

(a)  All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

 

(b)  Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.

 

(c)  All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Services and Fees Schedule (or to such other address as may be designated by a party from time to time in accordance with this Section 12(c)).

 

(d)  This Agreement, together with the Perceptivity Software Subscription Agreement, Services and Fees Schedule, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.  In the event of a conflict between the terms of this Agreement and the terms of the Perceptivity Software Subscription Agreement, the terms of the Perceptivity Software Subscription Agreement shall control.

 

(e)  Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

 

(f)  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

(g)  This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

(h)  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

(i)  For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Services and Fees Schedule and all Annexes, Schedules, and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. 

 

(j)  The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.