Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to them below. “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 Services. “Application” means the conversation analytics application and any other application made available by Service Provider to Customer under the terms and conditions of this Agreement, or any Service Order. “Authorized Users” means all users, including but not limited to employees, contractors and Service Provider, authorized by Customer to access the Services Software and the Platform pursuant to Section 3 and the other terms and conditions of this Agreement and as may be specified in the applicable Service Order. “Service Provider Materials” means the Products, Services Software, Specifications, Documentation and Service Provider Systems, Service Provider’s Confidential Information and any and all other proprietary documents, materials, devices, methods, processes, hardware, software and other technologies and inventions, technical or functional descriptions, requirements, plans or reports of Service Provider, that are provided or used by or on behalf of Service Provider or any Service Provider personnel in connection with or relate to the Services. “Service Provider System” 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 and networks, whether operated directly by Service Provider or through the use of third-party services. “Confidential Information” means any information disclosed by one Party to the other or accessed by the other under this Agreement, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the Receiving Party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Platform and the Service Provider System shall be deemed Confidential Information of Service Provider, and the Customer Data, the identity of the Customer Customers, and the existence of this Agreement shall be deemed Confidential Information of Customer. “Customer Data” means 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. For the avoidance of doubt, Customer Data includes information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User other than Resultant Data but does not include any clinical data, which means patient level data entered from Location from any Customer. “Customer’s Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by the Customer or through the use of third-party services. “Deliverable” means any item to be delivered by Service Provider to Customer as part of the Services and identified as a “deliverable” in the applicable Service Order. “Documentation” means any documentation provided by Service Provider for use with the Services and Platform under this Agreement. “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 Users from accessing or using the Services or Service Provider Systems as intended by this Agreement. “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. “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. “Marks” means a Party’s corporate or trade name, trademarks, logos, domain names or other identification of such Party. “Permitted Use” means any use of the Services by an Authorized User for the benefit of the Customer, Customer Customers solely for their internal business operations. “Platform” means the Service Provider Systems owned or leased by Service Provider via which the Services are provided to Customer .“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. “Product” means ‘observe.ai agent assist’ product or other Deliverable provided by Service Provider pursuant to this Agreement, including any interface created by Service Provider where the Customer and Authorized Users view the branded dashboard and data streams, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Service Provider, Customer, or any third party.“ 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 Order” shall have the meaning set forth in Section 2.1. “Services” have the meaning set forth in the first recital above, as more fully described in Schedule I, attached hereto, including the Applications, the Service Software, Service Provider Materials, Products, the Platform or any other services provided hereunder. “Service Software” means Service Provider’s proprietary conversation analytics software, ObserveAI™ applications and any third-party software (and any computer program or module related thereto), including all Documentation, new versions, updates, enhancements, upgrades, revisions, improvements and modifications of the foregoing that Service Provider provides remote access to and use of as part of the Services which is specified in each Service entered into pursuant to this Agreement. “Specifications” means the requirements for the Services provided in the applicable Documentation, or Service Order. “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.
From time to time, Customer and Service Provider may execute one or more service orders (each a “Service Order” or “SO”). Any rights granted will not be effective until the Parties have executed a written Service Order in in a form to be mutually agreed upon by the Parties and contain, at a minimum: (w) a description of the specific Services and features to be licensed or provided for access to use; (x) the time period in which such licenses or Services are to be in effect; (y) the fees to be paid under the Service Order (the “Fees”); and (z) any other duties and fees associated with such license or Services. Each SO will describe the Services to be performed by Service Provider and Deliverables to be provided. Each SO will incorporate the terms of this Agreement by reference. As such, any reference to Service Order or SO herein will be deemed to include the provisions of this Agreement. Each SO must be signed by Customer and Service Provider. A SO is not valid or effective until signed by both Parties. To the extent any provision in a SO conflicts with any provision in this Agreement, the provision in the SO will control. Each SO executed shall constitute a separate agreement that is subject to the terms and conditions of this Agreement and shall be binding, when duly executed by each of the Parties hereto, upon such Parties and their respective successors, legal representatives and permitted assigns.
Access to Services.
3.1 Subscription License Grant. 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 hereby grants to Customer, and Customer hereby accepts, a subscription, limited, non-exclusive, non-transferrable, non-sublicensable, non-assignable license to access the Services, as Service Provider may supply or make available to Customer solely for the Permitted Use by and through Customer’s Authorized Users in accordance with the Specifications. The license granted hereunder shall apply to Customer in the Territory. The Services may be used by Customer and its Authorized Users under the terms and conditions of this Agreement. Service Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services as described in a Service Order in accordance with the Specifications and the conditions hereof, including to host, manage, operate and maintain the Services for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the Specifications, such access to be provided twenty-four (24) hours per day, seven (7) days per week every day of the year except for: (i) Scheduled Downtime in accordance with the Service Level Agreement; (ii) Service downtime or degradation due to a Force Majeure Event; (iii) Any other circumstances beyond Service Provider’s reasonable control, including Customer’s or any Authorized User’s misuse of Third Party Materials or use of the Services other than in compliance with the expressly stated terms and conditions of this Agreement and the Specifications; and (iv) Any termination of Customer’s or any Authorized User’s access to or use of the Services as permitted by this Agreement.
3.2 Service Provider System Control. Except as otherwise expressly provided in this Agreement, as between the Parties: (i) Service Provider has and will retain sole control over the operation, provision, maintenance and management of the Services, including the: (a) Service Provider Systems; (b) location(s) where any of the Services are performed, provided that it is in the Territory unless approved by Customer; (c) selection, deployment, modification and replacement, provided that Service Provider will not modify the Services to remove any material features and will not modify any feature that is Customer facing without Customer’s prior written consent; and (d) performance of support Services and Service maintenance, upgrades, updates, corrections and repairs; and (ii) 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 by any Authorized Users by or through the Customer Systems or any other means controlled by Customer or any Authorized User; (iii) Service Provider will have the right to review and monitor all use of the Service Provider System by Customer and its Authorized Users to ensure compliance with all of the terms of the Documentation and this Agreement.
3.3 Reservation of Rights. Except for the license and access rights granted in Section 3.1 for the term set forth in a Service Order, nothing in this Agreement grants any title or ownership interest in or to any Intellectual Property Rights in, the Services or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All title and ownership interest in and to the Services and the Third-Party Materials are and will remain with Service Provider and the respective rights holders in the Third-Party Materials.
3.4 Authorization Limitations and Restrictions. Customer’s access to and use of the Services is subject to the restrictions in this Section 3.4. Customer agrees to be bound by the actions of its Authorized Users and shall not permit any Authorized User to access or use the Services except as expressly permitted by this Agreement and, in the case of Third Party Materials that require, by their terms, a separate license agreement, such third-party license agreement shall be provided to and agreed to in writing by Customer prior to Customer being subject to its terms. The Parties agree and the Customer acknowledges that a violation of this Section 3.4 shall be deemed a material breach of this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer or its Authorized Users shall not, except as this Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the Services, except that, in the case of Documentation, Customer may create a reasonable number of copies of the written Documentation and training materials for training purposes; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iii) reverse-engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code in whole or in part; (iv)bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Access Credentials; (v) input, upload, transmit or otherwise provide to the Platform, any information or materials that Customer knows to be unlawful or injurious, or contain, transmit or activate any Harmful Code; (vi) disrupt, disable, impair, destroy, damage, interfere with or otherwise impede or harm in any manner the Services to any third party; (vii) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof, provided that Service Provider will not include its name or trademark or any proprietary rights notices in any feature that is Customer facing without Customer’s prior written consent; (viii)access or use the Services in any manner or for any purpose that violates any applicable law; (ix) access or use the Services to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; (x) access or use the Services for purposes of competitive analysis, 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 (xi)otherwise access or use the Services beyond the scope of the authorization set forth in this Agreement or in any manner or for any purpose that is unlawful under applicable law.
3.5 Works for Hire. Except as specifically stated in the Service Orders, the Parties do not contemplate the development by Service Provider of any custom-developed deliverables for Customer. In the event Customer requests custom development of deliverables by Service Provider in the future, the Parties will agree to the governing terms at that time. Notwithstanding the foregoing, any suggestions or product feedback rendered by a Customer relating to the Services shall not be considered “works made for hire,” or comparable terms, as defined in the United States Copyright Act or other federal or state laws. Unless otherwise agreed to in writing by the Service Provider, all rights in and to the Services (including Third-Party Materials) are expressly reserved by Service Provider and the respective third-party. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Service Provider an unrestricted license to use any feedback or suggestions (excluding any Customer Data included therein) given to Service Provider, including all Intellectual Property Rights relating thereto.
3.6 Support Desk. Service Provider shall implement a support desk to handle inquiries about any invoice and the Services, in accordance with Schedule I
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 Service Provider personnel with such access to Customer’s premises and Customer’s Systems as may be reasonably necessary for Service Provider to perform the Services in accordance with the terms of this Agreement; 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 hereunder. Service Provider is not responsible or liable for any delay or failure of performance caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). In such case, Service Provider will be given an extension of time equal to the number of days solely delayed by Customer to perform Service Provider’s obligations. If Customer becomes aware of any actual or threatened prohibited activity by Customer or any Authorized User, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures 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 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.
Customer shall pay Service Provider the Fees in the amount set forth in the applicable Service Order and/or Schedule II, attached hereto, in accordance with the terms set forth in this Section 6 and as may be specified in the Service Order and/or Schedule II. Customer shall, in addition to the other amounts payable under this Agreement, pay, if applicable, all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Service Provider’s net income. Customer agrees to indemnify, defend, and hold Service Provider, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments. Customer shall pay all Fees and any reimbursable expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by check or automated clearing house (ACH). Customer shall make payments to the address or account as the Parties agree to and may specify in writing from time to time. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Service Provider may charge interest on the past due amount at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is more. 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 or deduction or withholding of tax as may be required by applicable Law.
Intellectual Property Rights.
All right, title and interest in and to the Services, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto 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 except as expressly set forth in Section 3.1 in each case subject to Section 3.3. All other rights in and to the Services are expressly reserved by Service Provider and the respective third-party. In furtherance of the foregoing, Customer agrees that the Service Provider is the owner of the Resultant 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 this Section 7. Subject to the terms and conditions of this Agreement, the Customer hereby grants Service Provider a limited, revocable, non-transferable, non-exclusive, non-sub licensable, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Customer Data solely in order solely for purposes of providing the Services to Customer, improvements to the Services, quality control and anonymized benchmarking. Service Provider shall have no right to use the Customer Data for any other purpose or share the Customer Data with anyone other than the Customer. Customer hereby grants Service Provider a royalty-free, non-exclusive, non-transferable, non-sublicensable, revocable, limited term license to use Customer’s Marks solely for the purpose of aligning the appearance of the Services to Customer’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. Such license shall be limited to the duration of this Agreement. During the Term of the Agreement, Service Provider may include Customer in any of Service Provider’s Customer lists, solely for the purpose of identifying Customer as a Customer of Service Provider. Service Provider shall not use any of Customer’s Marks in any manner that Customer, in its sole discretion, deems to be an explicit or implicit endorsement of Service Provider, or which is likely to cause confusion as to Customer’s relationship to Service Provider. Customer and Service Provider acknowledge that the provisions of this paragraph do not convey any right, title or ownership interest in Customer’s Marks to Service Provider. Any tangible output, including but not limited to any reports, notes, designs, drawings, memoranda, and data, if any, either (i) specifically developed for and furnished by Service Provider to Customer in connection with its performance of the Services, (ii) containing Customer’s proprietary or confidential information, or (iii) generated by Customer through its use of the Services (“Customer Output”) shall become the property of Customer. All Customer Output shall be delivered to Customer upon demand, and Customer shall have the right to use Customer Output for any purpose that it may deem desirable without the necessity of further compensating Service Provider or any other person or persons for Customer’s use.
Representations and Warranty.
8.1 Service Provider Warranty. Service Provider warrants to Customer that during the Term, (a) the Services will perform substantially in accordance with the terms of Documentation, (b) Service Provider has the right to grant the license granted under this Agreement, or, in the case of any third party software, that it has the right to grant a sublicense to use such third party software, (c) Service Provider has the necessary resources, expertise, and personnel to perform the Services in a professional manner according to the terms and conditions of this Agreement, the Service Order, and (d) Services shall be free from material defects in design, workmanship and materials. The foregoing warranty in clause (a) shall not apply to performance issues of the Service Provider System (i) caused solely by factors outside of Service Provider’s reasonable control; (ii) that result solely from any improper actions or inactions of Customer, its Authorized Users, or any third parties; or (iii) that result solely from Customer’s data structure, operating environment or equipment. Service Provider represents and warrants to Customer that in connection with the licensing of the Services, Customer will not input, upload, transmit or otherwise provide to or through the Services, any information or materials that Service Provider knows to be unlawful or injurious, or contain, transmit or activate any Harmful Code. In the event a Harmful Code is identified, Service Provider shall take all steps necessary, at no additional cost to Customer, to restore and/or reconstruct any and all data lost by Customer as a result of such Harmful Code. In the event that Customer’s data is corrupted or lost as a result of any action by Service Provider, Customer may, in addition to the other remedies that may be available to it, require Service Provider at the Service Provider’s expense to restore or procure the restoration of Customer’s data by whatever means necessary to ensure its integrity subject to the cap set forth in Section 11 below. For any third-party software provided by Service Provider to Customer, Service Provider hereby assigns to Customer all end user warranties and indemnities relating to such third-party software. To the extent that Service Provider is not permitted to assign any of such end user warranties and indemnities through to Customer, Service Provider shall enforce such warranties and indemnities on behalf of Customer to the extent Service Provider is permitted to do so under the terms of the applicable third-party agreements. Service Provider represents and warrants that it will only transfer (including internal Service Provider transfers that occur beyond the internal firewalls of Service Provider) Customer Data in a secure and confidential manner, including at a minimum, encrypting the data with no less than 128-bit encryption or through establishing a virtual private network with Customer and shall comply with all security provisions and procedures set forth in Customer’s security policies and procedures.
8.2 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.
8.3 Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 8, ALL SERVICES 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 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 EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, 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.
The term of each Service Order (“SO Term”) shall be set forth in such Service Order. Unless otherwise agreed to by the Parties, the initial term of the Service Order will be twelve months (“Initial Term”). Unless terminated earlier in accordance with the termination rights set forth in this Section 9, this Agreement shall commence upon the Effective Date and remain in full force and effect until all Service Orders associated herewith have expired or terminated (the “Agreement Term”). This Agreement or a Service Order may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows: (a) if the other Party fails to perform or observe any material term or condition in this Agreement or the Service Order and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; (b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing; (c)for convenience without cause or penalty upon ninety (90) days prior written notice to the other Party; or (d) pursuant to any termination clauses in a Service Order. Upon termination of this Agreement, each Party shall promptly return, or at the other Party’s request, destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party (including without limitation the Customer Data and the Documentation). Sections 1, 3-14 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
For customers signing up for services via TalkDesk App Connect all the terms will mirror the terms and termination clauses listed under their TalkDesk contract. Customer to select the tier of service and the length of the term and the pricing will be as per agreed terms per their TalkDesk contract.
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”). 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. As a condition for receiving Confidential Information, Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Limitation on Damages.
11.1 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR BREACH OF CONFIDENTIALITY AND SECURITY AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES, IN NO EVENT WILL SERVICE PROVIDER OR ANY OF ITS SERVICE PROVIDERS, SERVICE PROVIDER’S 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, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO, (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.
11.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.2, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY 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 ONE TIMES (1X) THE AGGREGATE PAYMENTS PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.3 Exceptions. The exclusions and limitations in Section 11.1 and Section 11.2 do not apply to (i) Service Provider’s obligations under Section 12 (Indemnification), (ii) any liability for Service Provider’s gross negligence or willful misconduct, (iii) a breach of obligations with respect to Confidential Information or, (iv) any violation of applicable federal, state, or local laws.
Service Provider shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and 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) to the extent that such Losses arise from any allegation in such Action relating to: (i) Service Provider’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (ii) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Service Provider or a Subcontractor of Service Provider, in connection with this Agreement; or (iii) Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringe a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses to the extent it arises out of: (i) access to or use of the Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Service Provider; (ii) modification of the Services other than: (a) by or on behalf of Service Provider; or (b) with Service Provider’s written approval in accordance with Service Provider’s written specification; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer at no cost by or on behalf of Service Provider; or (iv) act, omission or other matter described in this Section 12, whether or not the same results in any Action against or Losses by any Service Provider Indemnitee. Customer shall indemnify, defend and hold harmless Service Provider and its officers, directors, employees, agents, successors and assigns (each, a “Service Provider Indemnitee“) from and against any and all Losses incurred by such Service Provider Indemnitee in connection with any Action by a third party (other than an affiliate of a Service Provider Indemnitee) to the extent that such Losses arise out of or relate to any: (i) allegation that Customer Data or 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 infringe a U.S. Intellectual Property Right; (ii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (iii)gross 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. 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 this Section 12, 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 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. 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) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the Party assuming obligations agrees to do so in writing and has adequate resources to meet its obligations hereunder. Notwithstanding the foregoing, Service Provider may not assign this Agreement to any competitor of Customer without Customer’s prior written consent. Any change in control of Service Provider will be deemed to be an assignment for purposes of this Section. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement. Service Provider shall be fully responsible for any and all actions and omissions of its subcontractors, whether or not Customer has approved such subcontractors. This Agreement, any exhibits and amendments thereto, any Service Orders, Purchase Agreements or Statements of work constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties. This Agreement supercedes the DUA, defined above in the preamble. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party affected immediately notifies the other Party and immediately takes all reasonably necessary steps to resume full performance. If Force Majeure Event lasts for more than 15 days with respect to Service Provider and 30 days with respect to Customer, then Customer may terminate this Agreement or the applicable Service Order. This Agreement shall be governed by and interpreted in accordance with the laws of the state of San Francisco without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in California. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect. Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant. Except as prohibited by law, any legal dispute between the Parties arising out of this Agreement (a “Legal Dispute”) will be resolved through mandatory and binding arbitration in [San Francisco, California] in accordance with the rule of American Arbitration Association, and pursuant to [California] law. THE PARTIES UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES THEY ARE WAIVING ANY RIGHT THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit substantive rights or the remedies available to the Parties, including the right to seek interim relief, such as injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. The prevailing Party will be entitled to its reasonable attorneys’ fees and litigation or related expenses in any arbitration, suit or proceeding concerning the subject matter of this Agreement or any applicable Service Order or arising from or related to it, or to interpret or enforce the Agreement or any applicable Service Order. During the Term of this Agreement, Service Provider will maintain with a reputable insurance Company (i) Commercial general liability insurance with coverage on a primary, non-contributing, occurrence basis not endorsed to exclude coverage. The minimum limit for bodily injury and property damage shall be $1,000,000.00 each occurrence, $1,000,000.00 aggregate. Limits may be provided through a combination of primary and excess/umbrella coverage; (ii) Professional liability (errors and omissions) insurance with a minimum limit of $2,000,000.00 each claim and aggregate; (iii) Network Security and Privacy Liability (Cyber) insurance in an amount of at least $1,000,000.00 per occurrence and in the aggregate, providing protection, at a minimum, against liability for systems attacks, denial or loss of service, introduction, implantation or spread of malicious software code, security breach/unauthorized access and use; (iv) media liability insurance in an amount of $1,000,000.00 per occurrence and in the aggregate, providing coverage for, at a minimum, content, disclosure or unauthorized use of trade secrets, unauthorized disclosure of personal data, unfair competition and false advertising; (v) fidelity (employee dishonesty) insurance in an amount of $500,000; and (vi) workers’ compensation insurance sufficient to meet statutory liability limits in the state wherein the work is to be performed and employer’s liability insurance with minimum limits of $500,000.00 each accident for bodily injury by accident and $500,000.00 each employee for bodily injury or disease and a policy limit of $500,000.00. Upon Customer’s request, Service Provider will furnish a Certificate of Insurance evidencing the required insurance. Such certificate shall indicate that cancellation or non-renewal of such insurance shall not be effective sooner than thirty (30) days after Customer receives written notice.