- LATEST REVISION
- JANUARY 2022
THIS MASTER SERVICE AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF OCORE SOFTWARE AND RELATED SERVICES AND ANY OTHER SERVICES OR SOFTWARES OFFERED BY INDEVITY.
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO ALL OF THE TERMS OF THIS AGREEMENT. IF AN INDIVIDUAL ACCEPTS THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE ACCEPTING INDIVIDUAL REPRESENTS THAT THEY 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 THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on July 22, 2021. It is effective between Customer and INDEVITY as of the date of Customer’s acceptance of this Agreement (the “Effective Date”).
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.
Means this Master Service Agreement.
Means services or functionality that may be made available to Customer, at the option of Customer to try or assess prior to the Service being made generally available to all commercial clients. Such Services may or may not be offered at no additional charge to Customer or affiliates. Such Services shall be designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar description.
Means any information made available to Customer through the Services, Beta Services or pursuant to a purchase.
Means the company or legal entity, its employees and its affiliates, for which Services are being acquired or by which services will be used.
Means data and information submitted by or for Customer to the Services.
Means applicable guidelines, policies, governing principles and agreements set forth by INDEVITY, whether available in user agreements, online or otherwise made available to Customer.
Means Services or Softwares that INDEVITY makes available to Customer free of charge.
Means the legal entity that holds all controlling interests, rights and trademarks of the OCORE suite of software.
Means code, files, scripts, programs or other agents intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Means any purchase or request to use Services, as defined in this agreement and/or in the ordering documentation.
Means any ordering document specifying the Services to be provided to Customer, including any addenda and supplements thereto. Ordering documents may include a Purchase Agreement, Purchase Order, Order Form, Licensing Agreement, Statement of Work, Quote or similar documentation providing an outline of services to be rendered.
Means Services that Customer has entered into an agreement, or otherwise requested, to purchase and Indevity has agreed to provide.
Means both the products (including limited usage of softwares) and services that are ordered by Customer under a Purchase Agreement or provided under a free trial, including those made available online, and all offline or mobile components, as described in the Documentation.
Means services, including software and other products that are made available to Customer on a limited usage or trial basis. Such Trial Services may include demonstration environments, temporary installations or any other access to services and products granted on a limited, short term or otherwise reduced basis.
Means, an individual who receives access to Services from Customer. Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2.1 Provisions of Purchased Services.
INDEVITY will (a) make the Services and Content available to Customer in accordance with this Agreement, and related Purchase Agreement(s) and provided Documentation, (b) provide applicable support for the purchased Services to Customer as defined in the Purchase Agreement, (c) use reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which INDEVITY shall give advance electronic notice), and (ii) any unavailability caused by such circumstances as are beyond INDEVITY’s reasonable control, including, for example, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or other labor disputes or other problem (other than those involving employees of INDEVITY), Internet service provider failures or delays.
2.2 Protection of Customer Data.
INDEVITY will maintain appropriate technical, administrative and physical safeguards for the protection of the confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to Customer data. Such provisions exclude the use or disclosure of Customer Data by INDEVITY, its Affiliates, Contractors and Employees, for authorized purposes.
2.3 Data Exports
Customer and its applicable Affiliates are each the primary data exporter. Should use of Services terminate Customer is responsible for exporting any and all data. Upon the rightful termination or expiration of this Agreement, INDEVITY will make Customer Data available to Customer for export or download as provided in the Documentation for 30 days from the date of termination. After such 30-day period, INDEVITY will have no obligation to maintain or otherwise make available any Customer Data and may thereafter delete or destroy all copies of Customer Data (in its systems or otherwise in its possession or control), unless prohibited by governing law.
2.4 Beta Services.
INDEVITY may make Beta Services available to Customer. Customer may accept or reject such Beta Services in its sole discretion. By accepting Beta Services, Customer acknowledges the risks of using such Beta Services.
2.5 Trial Services.
If Customer is given access to Trial Services (paid or unpaid), INDEVITY shall make such limited use services available until (a) the end of the trial period, or (b) the start date of any non-trial Purchased Service subscriptions, or in the case of unpaid Trial Services (c) termination by INDEVITY in its sole discretion, or in the case of a paid Trial Service (d) at the end of the generally agreed upon trial period. Additional trial terms and conditions may be provided at the time such services are rendered or enabled (including by email, phone or Purchase Agreement of any kind). Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding (with or without an executed Purchase Agreement). In the event of a conflict between this section and any other portion of this Agreement, this section shall control.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES OR EXPORTS SUCH DATA PRIOR TO THE END OF THE TRIAL PERIOD. CUSTOMER MAY NOT BE PERMITTED TO TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THE SERVICE GRANTED DURING THE TRIAL. IF CUSTOMER DOES NOT PURCHASE A LICENSE OF EQUAL OR GREATER CAPABILITY AT THE END OF THE TRIAL PERIOD AND DOES NOT DOWNLOAD DATA ENTERED INTO THE SERVICES DURING THE TRIAL PERIOD DATA MAY BE PERMANENTLY LOST.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS” SPECIFIED IN THIS AGREEMENT OR THE “INDEMNIFICATION BY INDEVITY” SECTION BELOW, DURING A TRIAL OR DEMONSTRATION PERIOD ALL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND INDEVITY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES GRANTED FOR THE TRIAL PERIOD. IN SUCH A CASE AS EXCLUSIONS OF LIABILITY ARE NOT ENFORCEABLE UNDER APPLICABLE LAW INDEVITY’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED SHALL NOT EXCEED $1,000.
WITHOUT LIMITING THE FOREGOING, INDEVITY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO INDEVITY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.6 Free Services.
If INDEVITY provides Free Services to Customer, use of Free Services (with or without an executed Purchase Agreement) is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits. Usage over these limits requires Customer’s purchase of additional resources or services, with or without a signed Purchase Agreement.
Customer agrees that INDEVITY, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that INDEVITY will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Services. INDEVITY will not be liable for any loss of Customer data entered into Free Services.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, REMEDIES AND DISCLAIMERS” SPECIFIED IN THIS AGREEMENT OR THE “INDEMNIFICATION BY INDEVITY” SECTION BELOW, FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND INDEVITY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES GRANTED. IN SUCH A CASE AS EXCLUSIONS OF LIABILITY ARE NOT ENFORCEABLE UNDER APPLICABLE LAW INDEVITY’S LIABILITY WITH RESPECT TO THE FREE SERVICES PROVIDED SHALL NOT EXCEED $1,000.
WITHOUT LIMITING THE FOREGOING, INDEVITY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED WILL BE ACCURATE (AS IT PERTAINS TO THE FREE SERVICES).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO INDEVITY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.7 Sub-contractors and Partners.
Customer acknowledges that, as may be necessary in the fulfillment of Services, Indevity may use partners for certain portions of the services. These partners will be held to all standards outlined in this agreement, and OCORE will be responsible for the quality and timeliness of their work.
2.8 Language and Contracts.
All contracts will be prepared, written and will be executed in English. Non-English translations that have, or will be provided, are for convenience only and are not valid or legally bindings. In case of a conflict between Agreement and any translations, the English version will control.
USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Purchase Agreement or Documentation, purchased Services and access to Content are purchased as subscriptions for the term stated in the corresponding Purchase Agreement or in the applicable online or emailed Documentation.
3.2 Usage Limits.
Services and Content are subject to usage limits specified in Purchase Agreements and Documentation. If Customer exceeds a contractual usage limit, INDEVITY may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, Customer is unable or unwilling to abide by a contracted usage limit, Customer will execute a Purchase Agreement for additional quantities of the applicable Services or Content promptly upon INDEVITY’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below. Customer is responsible for monitoring actual usage and ensuring usage does not exceed usage limits.
3.3 Customer Responsibilities.
Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Purchase Agreement(s), (b) be responsible for the accuracy, quality and legality of Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content (including that by unauthorized or unpaid employees, contractors, consultants or other users), and notify INDEVITY promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement.
3.4 Usage Restrictions.
Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in a Purchase Agreement or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of INDEVITY intellectual property except as permitted under this Agreement, a Purchase Agreement, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content (j) frame or mirror any part of any Service or Content, (k) disassemble, reverse engineer, or decompile a Service or Content or (l) access a Service to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of a patent.
3.5 Suspension from Services
Any use of the Services in breach of the foregoing by Customer or Users that in INDEVITY’s judgment threatens the security, integrity or availability of INDEVITY’s services, may result in INDEVITY’s immediate suspension of the Services, however INDEVITY will use commercially reasonable efforts, under the circumstances, to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. INDEVITY will not be held liable for the loss of data resulting from a permanent suspension from Services as defined in this section.
INDEVITY will not provide any refunds for unused services remaining after a permanent suspension resulting from malignant, harmful or damaging behavior.
FEES AND PAYMENT
Customer will pay all fees as specified in Purchase Agreement(s). Except as otherwise specified in Purchase Agreement (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment.
Customer will provide INDEVITY with valid and updated credit card information, or with other proof of future payment as is deemed acceptable by INDEVITY. If Customer provides credit card information, Customer authorizes INDEVITY to charge such credit card for all Purchased Services listed in the Purchase Agreement for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, which may be (a) as soon as payment method is received for new users or (b) up to 30 days prior to the end of a subscription period (and beginning of a renewal period) for renewing customers. A servicing fee may be applied if the total of Customer credit card payments exceeds $10,000 in a given 12-month period. Unless specified in the Purchase Agreement the servicing fee shall not exceed 5% of the total of all purchases made on the credit card.
If the Purchase Agreement specifies that payment will be by a method other than a credit card, INDEVITY will invoice Customer in advance and otherwise in accordance with the relevant Purchase Agreement. Unless otherwise stated in the Purchase Agreement, invoiced fees are due 30 days from the invoice date, meaning “net 30.” Invoicing for renewal periods shall occur no more than 60 days prior to the renewal date.
4.3 Overdue Charges and Acceleration
If any invoiced amount is not received by INDEVITY by the due date, then without limiting INDEVITY’s rights or remedies, (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) INDEVITY may condition future subscription renewals and Purchase Agreements on payment terms shorter than those specified in the “Invoicing and Payment” section above.
If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized INDEVITY to charge to Customer’s credit card), INDEVITY may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, INDEVITY will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below, before suspending services to Customer.
INDEVITY’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If INDEVITY has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, INDEVITY will invoice Customer and Customer will pay that amount unless Customer provides INDEVITY with a valid tax exemption certificate authorized by the appropriate taxing authority. If INDEVITY is unaware of a legal obligation to collect taxes at the time the Purchase Agreement is executed, INDEVITY shall invoice Customer separately for the taxable amount, Customer will then pay the taxable amount to INDEVITY in accordance with the terms specified in the “Invoicing and Payment.” If taxes charged by INDEVITY are found to be incorrect, Customer and INDEVITY shall make all reasonable efforts to settle the excess or deficiency promptly.
For clarity, INDEVITY is solely responsible for taxes assessable against it based on its income, property and employees.
TERM AND TERMINATION
5.1 Term of Agreement.
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
5.2 Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Purchase Agreement. Except as otherwise specified in a Purchase Agreement, SUBSCRIPTIONS WILL AUTOMATICALLY RENEW for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.
Except as expressly provided in the applicable Purchase Agreement, renewal of promotional or discounted subscriptions will be at INDEVITY’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
A party may terminate this Agreement for cause if (i) upon 30 days written notice to the other party of a material breach such breach remains uncured at the expiration of such period, or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4 Refund or Payment upon Termination.
If this Agreement is terminated by Customer for cause in accordance with the “Termination” section above, INDEVITY will refund Customer any prepaid fees covering the remainder of the term of all Purchase Agreements after the effective date of termination. If this Agreement is terminated by INDEVITY for cause in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Purchase Agreements to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to INDEVITY for the period prior to the effective date of termination.
5.5 Surviving Provisions.
The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as INDEVITY retains possession of Customer Data.
PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, INDEVITY, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Access to and Use of Content.
Customer has the right to access and use applicable Content subject to the terms of applicable Purchase Agreement, this Agreement and the Documentation.
6.3 License by Customer to INDEVITY.
Customer grants INDEVITY, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-INDEVITY Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for INDEVITY to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, INDEVITY acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, or Non-INDEVITY Application.
6.4 License by Customer to Use Feedback.
Customer grants to INDEVITY and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of INDEVITY’s or its Affiliates’ services.
7.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of INDEVITY includes the Services and Content, and the terms and conditions of this Agreement and all Purchase Agreements (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional INDEVITY services.
7.2 Protection of Confidential Information.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Purchase Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
Notwithstanding the foregoing, INDEVITY may disclose the terms of this Agreement and any applicable Purchase Agreement to a subcontractor or Non-INDEVITY Application Provider to the extent necessary to perform INDEVITY’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has proper authority to enter into this Agreement and has the legal power to do so.
8.2 INDEVITY Warranties.
INDEVITY warrants that during an applicable subscription term (a) this Agreement, the Purchase Agreements and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for the security, confidentiality and integrity of Customer Data, (b) INDEVITY will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) INDEVITY will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections above.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES AND SOFTWARES OFFERED AS PART OF FREE SERVICES OR TRIAL SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9.1 Indemnification by INDEVITY.
INDEVITY shall defend, indemnify and hold harmless Customer, its parent company and their respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments based on third party claims that Customer’s authorized use of the Software violates or infringes any U.S. patent that has issued as of the Effective Date, copyright, trademark, or trade secret; provided that (i) Customer gives INDEVITY prompt written notice of the claim; (ii) INDEVITY has full and complete control over the defense and settlement of the claim; (iii) CUSTOMER provides assistance in connection with the defense and settlement of the claim as INDEVITY may reasonably request; and (iv) CUSTOMER complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). INDEVITY shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion.
INDEVITY will have no obligation under this “Mutual Indemnification” for any infringement to the extent that it arises out of or is based upon: (1) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (2) designs, requirements, or specifications for the Software required by or provided by Customer, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (3) use of the Software outside of the scope of the Purchase Agreement; (4) Customer’s failure to use the latest release of the Software or to comply with instructions provided by INDEVITY, if the alleged infringement would not have occurred but for such failure; or (5) any modification of the Software not made by INDEVITY where such infringement would not have occurred absent such modification. Customer will reimburse INDEVITY for any costs or damages that result from these actions. This “Mutual Indemnification” states INDEVITY’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement by INDEVITY of any third-party intellectual property right by the Software.
9.2 Indemnification by Customer.
Customer will defend INDEVITY and its Affiliates against any claim, demand, suit or proceeding made or brought against INDEVITY by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Purchase Agreement (each a “Claim Against INDEVITY ”), and will indemnify INDEVITY from any damages, attorney fees and costs finally awarded against INDEVITY as a result of, or for any amounts paid by INDEVITY under a settlement approved by Customer in writing of, a Claim Against INDEVITY, provided INDEVITY (a) promptly gives Customer written notice of the Claim Against INDEVITY, (b) gives Customer sole control of the defense and settlement of the Claim Against INDEVITY (except that Customer may not settle any Claim Against INDEVITY unless it unconditionally releases INDEVITY of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against INDEVITY arises from INDEVITY’s breach of this Agreement, the Documentation or applicable Purchase Agreements.
LIMITATION OF LIABILITY
10.1 Limitation of Liability.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.1 Export Compliance.
The Services, Content, other INDEVITY technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. INDEVITY and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation, including but not limited to Targeted Sanctions which may preclude the legal use of this software in certain industries in otherwise authorized countries or regions.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. REASONABLE gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Reasonable gifts may include meals (when part of a regular course of busines), reasonable travel accommodations, OCORE or INDEVITY apparel, access to events sponsored by OCORE or INDEVITY as organized for general marketing, training, networking, customer appreciation or similar purposes.
11.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between INDEVITY and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. This agreement is intended as the final expression and complete and exclusive statement of the terms hereof, any amendments and modifications to this agreement must be made in writing and signed by both parties.
Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.4 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.5 Third-Party Beneficiaries.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Purchase Agreements), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then INDEVITY or such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 INDEVITY Contracting Entity, Notices, Governing Law, and Venue.
The legal entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, are listed below and do not depend on where the Customer is domiciled.
The entity entering into this Agreement is: Indevity Inc., a Delaware corporation
Mailing Address: Indevity Inc. 710 S Redwood Rd, North Salt Lake, UT 84054
Notices should be addressed to: attn: CRO, Sales and Marketing Operations, -with a copy to- attn: General Counsel.
Governing law is: Utah and controlling United States federal law
11.10 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.11 Agreement to Governing Law and Jurisdiction.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.