LifeLoop master purchase and license agreement
This MASTER PURCHASE AND LICENSE AGREEMENT (“Agreement”) is made as of the execution date of the Order Summary (“Order Summary Effective Date”) by and between It’s Never 2 Late, LLC, DBA LifeLoop, and LifeLoop, LLC (a wholly owned subsidiary of It’s Never 2 Late, LLC, DBA LifeLoop), collectively referenced as “Company” with its principal place of business at 5889 S. Greenwood Plaza Blvd. Suite 320, Greenwood Village, CO 80111 (“Company”) and the Purchaser. As used in this Agreement, “Purchaser” shall be understood to include the purchaser identified in the applicable Order Summary, and any entity which owns or controls, is owned or controlled by, or is under common ownership or control with said Purchaser. Company and Purchaser may be referred to in this Agreement collectively as the “parties” or individually as a “party.”
Company offers systems that provide Purchaser’s end users with the ability to access and use: (1) software from Company and other third parties; (2) information, data, and content from Company and other third parties; and (3) third-party hardware software, peripherals, and Third-Party Offerings (as defined below) (collectively, the “Company Systems”), to empower individuals and staff to connect, engage, and enjoy life. Purchaser desires to purchase a subscription to access and use the Company Systems for Purchaser’s long-term care communities or other locations where the Company Systems will be used and maintained (“Use Sites”).
This Agreement sets forth the terms and conditions under which Company will provide Purchaser with a subscription to access and use those Company Systems specified in one or more order summaries executed by both parties (each, an “Order Summary”) and will perform those services specified in each Order Summary, including the services made available through the Company Systems (the “Services,” as further described herein). All access to and use of the Company Systems and the performance of all Services are subject to the terms of this Agreement. If the terms of any Order Summary conflict with the terms of this Agreement, the terms of the Order Summary shall control.
This Agreement includes this page, the attached Terms and Conditions, the Exhibits referenced herein, and each Order Summary entered into by the parties hereunder, all of which are hereby incorporated into and made a part of this Agreement. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous oral and written communications between the parties in relation to the subject matter of this Agreement.
Terms and Conditions:
DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
ORDER SUMMARY. Purchaser may enter into one or multiple Order Summaries under this Agreement. Each Order Summary must be submitted to Company using an approved Company form ordering document, which Company shall provide to purchaser upon request. Order Summaries under this Agreement will be effective when signed by authorized representatives of both parties. Purchaser will have no rights to access or use any Company Systems or Services unless an applicable Order Summary has been executed.
TERM. The term of this Agreement will begin on the Order Summary Effective Date for the first Order Summary executed between the parties and will continue thereafter until terminated in accordance with the terms of this Agreement (the “Term”). The term of each Order Summary will be the earlier of the day after the Company Systems are implemented at the Use Sites, or the effective date stated in the Order Summary (“Order Summary Effective Date”). Unless otherwise stated in an applicable Order Summary, the term of each Order Summary will begin on the effective date stated in the Order Summary (“Order Summary Effective Date”) and will continue thereafter for an initial period of three (3) years (“Initial Order Summary Term”). Unless otherwise stated in an applicable Exhibit or Order Summary, the term of each Order Summary shall automatically renew thereafter for additional 1-year renewal periods, unless either party provides written notice of termination at least sixty (60) days prior to the end of the Initial Order Summary Term or then-current renewal period. These renewal terms (if any) together with the Initial Order Summary Term shall be known as the “Order Summary Term.”
COMPANY SYSTEMS. The Company System is comprised of: (a) software developed by and/or for Company (“Company Software”); (b) software developed, provided, or maintained by third-party providers (“Third-Party Software”); (c) information, data, and content developed by and/or for Company (“Company Content”); (d) information, data, and content developed or provided by third-party providers (“Third-Party Content”), and (e) any Hardware purchased or leased by the Purchaser as identified in an Order Summary.
- 4.1 Acceptance. Purchase must visually inspect all Company Systems upon receipt and promptly report possible errors or damage to Company. Unless Purchaser provides written notice to Company of material defects in any Company Systems within five (5) days following the receipt of the Company Systems, the Company Systems will be deemed accepted by Purchaser when delivered. Notices provided pursuant to this Section must describe the material defects in reasonable detail.
- 4.2 Hardware. As part of the Company Systems, Company may supply Purchaser with third-party hardware, peripheral devices, network communication devices, computers, and other equipment related to the Company System as identified in an Order Summary (“Hardware”). If Purchaser elects to purchase Hardware, Purchaser shall pay any and all applicable Fees for such Hardware, as described in the applicable Order Summary. Alternatively, if Purchaser elects to sublease Hardware from Company (such Hardware, “Leased Hardware”), Exhibit A shall apply. The Order Summary shall indicate whether the Purchaser is purchasing or leasing Hardware.
- 4.2.1 Title and Risk of Loss. Purchaser acknowledges that Company is acting only as a distributor or reseller of such Hardware and all Hardware is also subject to the applicable terms and conditions of any third-party provider of such Hardware. Title and risk of loss for any Hardware shall transfer to Purchaser FOB shipping point. As between Purchaser and Company, Purchaser is responsible for any loss, destruction, damage, or theft of or to the hardware following transfer of the risk and title to Purchaser.
- 4.3 Functionality. Company shall provide Purchaser with applicable user manuals, system documentation, or warranty information described in the Order Summary related to the Company Systems (“System Materials”). The Company Systems will include the functionality described in the applicable System Materials. Company may from time to time update, change, or revise the functionality of the Company Systems, provided the functionality of the Company Systems is not materially decreased from that described in the applicable System Materials.
- 4.4 License.
- 4.4.1 Company Software and Company Content. Subject to the terms and conditions of this Agreement, including Purchaser’s payment of all applicable Fees, Company hereby grants Purchaser a limited, non-exclusive, non-transferable license to access and use the Company Software and Company Content solely for Purchaser’s internal, non-commercial use in connection with the Company Systems at the Use Sites. Company also grants Purchaser a limited, non-exclusive, non-transferable license to use the System Materials solely in connection with Purchaser’s use and access of the Company Systems.
- 4.4.2 Third-Party Offerings. Purchaser acknowledges and agrees that certain portions of the Company Systems may include Third-Party Software, Third-Party Content, or Hardware (“Third-Party Offerings”). For any Third-Party Offering for which Company has the right to sub-license use for the Company System, subject to the terms and conditions of this Agreement, Company hereby grants Purchaser a limited, non-exclusive, non-transferable license to access and use the Third-Party Offerings solely for Purchaser’s internal, non-commercial use in connection with the Company Systems at the Use Sites. Purchaser’s access to and use of any Third-Party Offering is also subject to any other agreement separate from this Agreement that Purchaser may enter into (or may have entered into) relating to those Third-Party Offerings.
- 4.4.3 Additional Performance Licenses. The Company Systems may allow Purchaser to play, show, display, or otherwise perform certain Third-Party Content such as music and other media. Conducting these activities may be restricted without acquiring appropriate licensing under copyright or other applicable law. Licenses for these performances are not included with the Company Systems or as part of this Agreement.
- 4.5 Access and Accounts. Purchaser may access the Company Systems solely through an account established for Purchaser (“Account”). Purchaser will be permitted to establish user identifications and passwords through which its employees and other end users of Purchaser (“Users”) may access the Company Systems under Purchaser’s Account (each, an “Account ID”). Purchaser will ensure that all information about each User provided to Company in connection with establishing each Account ID is accurate and complete, and will maintain that information as accurate and complete throughout the Term. Purchaser may allow its Users to access and use the Company Systems solely for purposes of exercising the rights granted to Purchaser under this Agreement. Users may be required to agree to separate terms and conditions applicable to the Company System. Purchaser is and will remain solely responsible for all use of the Company Systems by each User and for compliance by each User with the applicable terms. Purchaser will ensure the security and confidentiality of each Account ID and will use commercially reasonable efforts to prevent unauthorized access to or use of the Company Systems. Purchaser will notify Company promptly of any such unauthorized access or use of the Company Systems or if any Account ID is lost, stolen, or otherwise compromised. Purchaser is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Company Systems through Purchaser’s Account or by any User, and that any use of Purchaser’s Account will be deemed to have been completed by Purchaser. In no event will Company be liable for the foregoing obligations or any failure by Purchaser to fulfill such obligations.
- 4.6 Restrictions. Purchaser acknowledges that the Company Systems, as well as the databases, software, content, hardware, and other technology, systems, and networks used by or on behalf of Company and its third-party providers to operate the Company Systems, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), constitute valuable intellectual property of Company and its third-party providers. Without limiting the other obligations of Purchaser under this Agreement, and as a condition to the rights granted herein, Purchaser will not, and will not permit any User or other third party to: (a) use, access, or attempt to access the Technology or any portion thereof except as expressly provided in this Agreement; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance, or functionality of the Technology; (i) interfere with the operation or hosting of the Technology; (j) use the Technology to transmit, distribute, redirect, or store material that, as reasonably determined by Company, is inappropriate, obscene, defamatory, libelous, threatening, abusive, hateful or which contains or incites violence. or (k) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology.
- 4.7 Outside Content. Purchaser acknowledges that, given the nature of the Company Systems, it may be possible for Users to use the Company Systems to access third-party digital content that is not Company Content or a Third-Party Offering (such content, “Outside Content”). Purchaser is responsible for ensuring that Purchaser’s unique organizational content and security settings have been applied to each device provided to Purchaser as part of a Company System. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES ARISING FROM OUTSIDE CONTENT ACCESSED BY USERS VIA THE COMPANY SYSTEMS.
- 4.8 Use Sites. Purchaser shall only use the Company Systems at the Use Sites identified in the applicable Order Summary. If Purchaser wishes to change the Use Sites, Purchaser must notify Company of the modified Use Sites and obtain Company’s prior written approval before initiating such transfer, such approval shall not be unreasonably withheld.
- 5.1 Upgrade Services. Except as may be set forth in an Order Summary or, as applicable, an Exhibit hereto, the Fees do not include any updates, upgrades, modifications, changes, additions, or improvements to the Company Systems (“Upgrade Services”), but Company shall endeavor to provide typical software updates and patches. If Purchaser requests Upgrade Services at any time during the Term, Company may agree to provide such Upgraded Services, and reserves the right to charge Purchaser reasonable additional Fees for such Upgraded Services. Company shall have the right to provide Upgrade Services at any time in its own discretion. Company further has the right to require that Purchaser allow Company to update, upgrade, modify, change, add, or improve software components of the Company system at any time as Company determines is necessary for the continued operation of the Company System (such necessary Upgrade Services, the “Required Upgrade Services”). If Company deems that Required Upgrade Services are necessary, and Purchaser has made all applicable payment of Fees, any such Required Upgrade Services may be made at no further cost to Purchaser. Any updates, upgrades, modifications, changes, additions, or improvements to the Company Systems provided by Company as part of any Upgrade Services will be treated as part of the “Company System” for purposes of this Agreement.
- 5.2 Maintenance and Support Services. Except as may be set forth in an Order Summary or any applicable Exhibits hereto, the Fees do not include any maintenance, support, implementation, or training relating to the Company Systems (“Maintenance and Support Services”). Notwithstanding the foregoing, should Company elect to provide Purchaser with any Maintenance and Support Services, such Maintenance and Support Services will be provided pursuant to Company’s then-current terms and at Company’s then-current fees for such Maintenance and Support Services, as applicable. Purchaser may not obtain maintenance, support, implementation, or training services for the Company Systems from any third party, and Purchaser will be solely responsible for performing all other maintenance, support, implementation, or training services not specified in an Order Summary. Maintenance and Support Services shall be performed during the working hours stated in the Order Summary applicable to those Maintenance and Support Services, or, if no working hours are stated, the Maintenance and Support Services will be provided during the hours of 7:00 a.m. to 5:00 p.m., Mountain Standard Time, Monday through Friday, 8:00 a.m. to 5:00 p.m., Mountain Standard Time, Saturday and Sunday, excluding holidays.
- 5.3 Professional Services. Company will perform any additional professional or consulting services relating to the Company Systems (“Professional Services”) if specified in any Order Summary mutually agreed to by both parties under this Agreement. Company will perform all Professional Services at the rates for those Professional Services set forth in each applicable Order Summary, or, if no rates are set forth in an applicable Order Summary, at Company’s then-current rates for those Professional Services.
- 5.4 Availability of Company Systems. Company warrants that, following commencement of Purchaser’s use of the Solution, the Solution will be available to Purchaser at least 99% of the time in each calendar month during the term of this Agreement, excluding the following (collectively, “Excused Down Time”) down time due to: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Company may undertake from time to time; (c) malfunctions and other failures relating to the web sites or services of third parties affecting the Systems or the Purchaser’s Data; or (d) causes beyond the control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks and network congestion or other failures. Company does not guarantee the timeliness or availability of the Systems. Subject to the terms above and Exhibit B (Cellular Terms), in the event Company’s Systems falls below 99% in any given month, a credit will be issued for 5% of Customer’s monthly recurring fees. Service level credits may not exceed one (1) month of recurring fees annually.
FEES AND PAYMENT.
- 6.1 Fees. Purchaser shall pay Company all amounts specified in each Order Summary (“Fees”). Company may increase fees on an annual basis effective on each anniversary of the Order Summary Effective Date. Company may also increase fees to current list price upon expiration of Initial Order Summary Term.
- 6.2 Payment. All Fees will be invoiced in advance in accordance with the terms of the applicable Order Summary. If no payment terms are set forth in the applicable Order Summary, such Fees will be invoiced on the Order Summary Effective Date and thereafter on an annual basis thirty (30) days prior to the anniversary of the Order Summary Effective Date. All Fees set forth in an invoice issued by Company will be due and payable by Purchaser in immediately available U.S. funds within thirty (30) days of the date of invoice. If Purchaser has not made payment within 30 days of the date of invoice (if any), Purchaser shall be deemed to be in material breach of this Agreement. If Purchaser has specified in Purchaser’s Account that Fees shall be paid by direct withdrawal or deposit from a credit card, debit card, ACH, wire transfer, mobile services account, or other payment method linked to Purchaser’s Account, Purchaser grants Company the right to charge the payment method provided to Company for all Fees incurred under this Agreement and Company shall be under no obligation to issue an invoice for such Fees. If Purchaser wishes to change its payment method, Purchaser can do so by notifying Company in writing. All Fees will be non-refundable once paid to Company (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Failure of Purchaser to fully pay any Fees when due shall be deemed a material breach and justify the immediate suspension of Purchaser’s access to the Services or, in Company’s discretion, the termination of this Agreement. Any such suspension does not relieve Purchaser from paying all amounts due under this Agreement for the remainder of the then applicable term of the Order Summary. Purchaser’s failure to pay Fees when due will constitute sufficient cause for Company to remotely suspend Purchaser’s access to the Company Systems or any Services upon notice to Purchaser. Company Systems and Equipment will not be released for shipment and any Services or Professional Services will not be scheduled or rendered until all Fees due are paid in full.
- 6.3 Taxes. The Fees do not include any sales, use, or other taxes, levies, or duties (“Taxes”). Purchaser is responsible for paying all Taxes that may be imposed by way of the performance of either party under this Agreement, excluding only Taxes based on Company’s net income.
- 6.4 Expenses. Purchaser shall reimburse Company for reasonable expenses incurred during the provision of Services. Expenses are billed based on actual costs incurred. Any estimated expenses will, if necessary, be included in each Order Summary.
- 7.1 Termination. Either party may terminate this Agreement or any Order Summary immediately upon written notice to the other party if the other party: (a) is in material breach of this Agreement or any Order Summary and fails to remedy such breach within thirty (30) days following the breaching party’s receipt of notice of such breach; or (b) materially breaches this Agreement in a manner that cannot be remedied. Either party may also immediately terminate this Agreement upon written notice to the other party if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. Any termination of this Agreement will terminate all Order Summaries under this Agreement. Any termination of an Order Summary will relate only to that Order Summary (unless otherwise specified in the notice of termination).
- 7.2 Service Discontinuance. If Company at any time discontinues offering any Company Systems, or any portion thereof, or any Services to new customers, Company will give Purchaser reasonable advance notice of such discontinuation. Upon such date of discontinuation, Company will have the right to terminate this Agreement as to those Company Systems or Services upon notice to Purchaser. As of the date of termination, Company will credit to Purchaser, on a pro-rated basis, any pre-paid Fees under this Agreement and Company shall have no further obligation to provide the Company Systems or any Service under this Agreement.
- 7.3 Suspension. Without limiting Company’s right to terminate this Agreement, Company may immediately suspend Purchaser’s access to the Company Systems if Company reasonably believes Purchaser’s or any User’s use of the Company Systems may be in violation of this Agreement or applicable law, or that the continued access to or use of the Company Systems by Purchaser may present a security risk, or otherwise place Company, the Technology, any other Company customer, or any third party at risk of harm, loss, or liability.
- 7.4 Effect of Termination. Upon termination or expiration of this Agreement or any Order Summary for any reason: (a) Company will immediately cease providing access to all Company Systems and Services under this Agreement or applicable Order Summary; (b) all rights and licenses granted to Purchaser under this Agreement or applicable Order Summary will immediately terminate; (c) Purchaser will immediately cease all use of and access to all Company Systems and Services; (d) if Exhibit A applies, Purchaser shall return all Leased Hardware in accordance with the terms of Exhibit A; (e) all Fees and other amounts then owed by Purchaser under this Agreement will become immediately due and payable to Company, and Purchaser grants Company a security interest in Hardware for any unpaid amounts; and (f) Purchaser will immediately either return to Company or, at Company’s discretion, destroy any software or content on the Company Systems, System Materials, and Confidential Information then in Purchaser’s possession or control. Upon termination or expiration, Company shall have the right to remotely access the Company System, or any feature within the Company System, and shut down the Company System or remove software or content from the Company System. At Company’s request, an officer of Purchaser will certify in writing that it has fully complied with its obligations under this Section. The following Sections will survive termination or expiration of this Agreement for any reason: 6 (Fees and Payment), 7.4 (Effect of Termination), 8 (Ownership), 11 (Disclaimer), 12 (Indemnification), 13 (Limitation on Liability), 14 (Confidentiality), 15 (Equitable Relief); 16 (Disputes); 17 (Governing Law and Venue), 18 (Export Controls); 19 (Force Majeure), 20 (Notice), and 22 (Additional Terms).
OWNERSHIP. Company and its third-party providers retain all right, title, and interest in and to the Technology and System Materials, all additions, improvements, updates, versions, or other modifications thereto, and all IPR (as defined below) therein or related thereto. Purchaser does not receive any ownership interest in or to any of the foregoing, and except as expressly granted in this Agreement, Company grants no rights or licenses to Purchaser (whether by implication, estoppel, or otherwise) in or to the Company Systems, Services or any IPR therein or relating thereto. All names and logos associated with the Company Systems and Services are trademarks of Company (or its third-party providers) and no right or license is granted to Purchaser to use them. Any rights not expressly granted to Purchaser hereunder are reserved by Company. Purchaser will not remove or alter any proprietary rights legend on the Company Systems. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.DATA.
- 9.1 Purchaser Data. As between Purchaser and Company, Purchaser retains ownership of all data, information, and other content provided to Company or through the Company Systems by or on behalf of Purchaser in connection with Purchaser’s use of the Company Systems (“Purchaser Data”). Purchaser is solely responsible for all Purchaser Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, and Company assumes no responsibility for any Purchaser Data. Purchaser will obtain and maintain all authorizations, approvals, permissions, consents and other rights necessary for Company to use and process all Purchaser Data in the performance of the Services and any other obligations of Company under this Agreement. Purchaser will maintain an adequate back-up of all Purchaser Data and Company will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Purchaser Data.
- 9.2 Company Data. Company may capture, analyze, use and disclose data and information related to Purchaser’s use and performance of the Company Systems (“Company Data”). All Company Data will be owned by Company and may be used by Company or its permitted service providers, for any lawful business purpose, including the improvement or monitoring of the Company platform, provided that the data and information is used only in an aggregated form, without directly identifying Purchaser, or any other User, as the source thereof.
- 9.3 Data Privacy. Company will not use, share or retain any Purchaser Data relating to an identified or identifiable natural person (“Purchaser Personal Data”) other than in accordance with this Agreement or as otherwise instructed by Purchaser, provided that Company may use Purchaser Personal Data as required to comply with applicable law to which Company is subject.
- 9.4 Data Security. Company will implement reasonable and appropriate technical and organizational measures in accordance with industry standards to ensure a level of security appropriate to the risk posed to the Purchaser Data. Subject to applicable law, Company will notify Purchaser in writing if Company becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Purchaser Data (“Security Breach”). Each party is solely responsible for complying with laws applicable to such party with respect to any such Security Breach, including fulfilling any notification obligations related to such breach.
- 10.1 General. Each party represents, warrants, and covenants to the other party that: (a) it has and will continue to have during the Term, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement; (b) the performance of its obligations under this Agreement does not violate any federal, state, or local laws, rules, and regulations (“Laws”) applicable to such party performance, any rights of any third party, or any agreement by which such party is bound; and (c) it will procure all rights, certificates, licenses, permits, or other approvals required for its performance under this Agreement.
- 10.2 Company Systems. Company represents and warrants to Purchaser that Company will use commercially reasonable efforts to maintain and verify that the Company Systems operate in accordance with the applicable System Materials and with any other levels of performance specified in an applicable Order Summary. Company’s sole obligation and Purchaser’s sole and exclusive remedy in the event of any failure of the Company Systems to comply with any such performance levels will be for Company to, at its option: (a) remedy the failure; or (b) refund Purchaser the portion of any Fees applicable to the portion of the Company Systems subject to the failure. This Section does not entitle Purchaser to any Maintenance and Support Services for the Company that are not described in an Order Summary. Any and all warranties under this Section shall be deemed waived by Purchaser and null and void, and Company shall have no obligation to Purchaser under any such warranties, if Purchaser: (i) fails to properly maintain and service the Company Systems; (ii) uses the Company Systems in a manner contrary to the System Materials; (iii) installs software or content that is not approved or authorized by Company; or (iv) makes any alteration, addition, improvement, modification or attachment to the Company Systems that is not authorized or approved by Company.
DISCLAIMER. PURCHASER ACKNOWLEDGES THAT THE COMPANY SYSTEMS AND SERVICES UNDER THIS AGREEMENT ARE PROVIDED BY COMPANY AND ITS THIRD-PARTY PROVIDERS STRICTLY “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT OR THE COMPANY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.INDEMNIFICATION.
- 12.1 By Purchaser. Purchaser will indemnify, defend, and hold harmless Company and its officers, directors, employees, and agents (collectively, “Company Indemnitees”) from and against any and all claims, demands, actions, proceedings or suits (“Claims”) brought against any Company Indemnitee and any related liabilities, losses, damages and expenses, costs (including court costs and reasonable attorneys’ fees) (“Losses”) arising out of, relating to, or resulting from: (a) use of or access to the Company Systems or Services by Purchaser or any User, (b) Purchaser’s negligence or willful misconduct, (c) Purchaser’s material breach of any representation, warranty, covenant or obligation in this Agreement or any Exhibits hereto, or failure to comply with any applicable Laws.
- 12.2 By Company. Company will indemnify, defend, and hold harmless Purchaser and its officers, directors, employees, and agents (collectively, “Purchaser Indemnitees”) from and against any Claims brought against any Purchaser Indemnitee by a third party, and any related Losses, that the use by Purchaser of any Company System infringes or misappropriates the IRP of such third party. If Purchaser is, or Company reasonably believes that Purchaser will become subject to any such third-party claim, Company may at its option: (a) procure the right for Purchaser to continue using such Company System; (b) replace or modify such Company System so that it no longer infringes, or (c) terminate this Agreement and provide Purchaser a pro-rated refund of any pre-paid unused Fees applicable to such Company System (if any). Company’s obligations under this Section will not apply to any Claim arising from: (i) other software, hardware, systems, network, or technology not provided by Company as part of any Company System; (ii) any modifications or changes to any Company System by or on behalf of Purchaser, whether or not in violation of this Agreement; (iii) Purchaser Data; (iv) access to or use of any Company System other than as permitted by this Agreement; or (v) use, installation, integration, incorporation, or combination of any Company System with or into any other software, hardware, system, network, or technology. THIS SECTION CONSTITUTES COMPANY’S SOLE AND EXCLUSIVE LIABILITY, AND PURCHASER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE COMPANY SYSTEMS.
- 12.3 Conditions. Each party’s indemnification obligations under this Agreement are conditioned upon the party seeking indemnification (the “Indemnified Party”) providing the other party with: (a) prompt notice of any such claim for indemnification; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the Indemnified Party to assume any liability other than the payment of monies will be subject to the Indemnified Party’s prior written consent; and (c) reasonable assistance in such defense or settlement (at the indemnifying or defending party’s expense). A party’s failure to promptly notify the other party of any claim for indemnification will not relieve the indemnifying party of its obligations to indemnify except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced in its ability to defend such claim as a result of such failure. LIMITATION ON LIABILITY. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR ANY LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 4.6, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S BREACH OF SECTION 14, SECTION 4.6, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND PURCHASER’S PAYMENT OBLIGATIONS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES PAID OR PAYABLE HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY. PURCHASER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- 14.1 Confidentiality Obligations. By virtue of this Agreement, each party may have access to the Confidential Information of the other party. For purposes of this Agreement, “Confidential Information” means any data or information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, and any other data or information received or otherwise obtained under this Agreement, whether in oral, written, or electronic form, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know to treat it as confidential. For the avoidance of doubt, all Company Software, Company Content, and System Materials regardless of the form, including all copies and extracts thereof, shall be the Confidential Information of Company. Each party shall take all reasonable steps to ensure the confidentiality and security of the other party’s Confidential Information in the same manner as such party protects its own Confidential Information of a similar nature, and in no event with less than reasonable care. Each party will return to the other party, or destroy, all Confidential Information in such party’s possession or control, and permanently erase all electronic copies of all Confidential Information promptly upon the written request of the disclosing party or upon termination of this Agreement.
- 14.2 Restrictions on Use and Disclosure. Neither party shall use or disclose any Confidential Information of the other party for any purpose other than exercising its rights and performing its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party to any third party, except to the receiving party’s employees, agents, or contractors (which may include advisors, accountants, and attorneys) who have a need to know such Confidential Information for purposes of this Agreement; provided that any employee, agent, or contractor is bound by a duty of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. Notwithstanding the foregoing, Confidential Information may be disclosed by a receiving party to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that before disclosing such information the receiving party must provide the disclosing party with sufficient advance notice of the agency’s request for the information to enable the disclosing party to exercise any rights it may have to challenge or limit the request for such Confidential Information.
- 14.3. Exceptions. Notwithstanding the foregoing, the restrictions on use and disclosure of Confidential Information set forth in this Section 14 shall not apply to the extent that such Confidential Information: (i) 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, as shown by the receiving party’s written records; (ii) was or becomes generally known by or available to the public other than by the receiving party’s, or any of its representatives’, noncompliance with this Agreement; (iii) was or is received by the receiving party on a non-confidential basis from a third party that, to the receiving party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the receiving party without reference to, use of, or benefit from any Confidential Information, as shown by the receiving party’s written records.
EQUITABLE RELIEF. Purchaser acknowledges and agrees that due to the unique nature of the Company Systems, related Technology and Confidential Information, a breach or threatened breach of its obligations under this Agreement would allow Purchaser or third parties to unfairly compete with Company, resulting in irreparable harm to Company for which there can be no adequate remedy at law. Accordingly, Purchaser agrees that in the event of such breach or threatened breach of this Agreement, Company will be entitled to seek 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.
DISPUTES. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within thirty (30) days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under this Agreement, including, any disputes arising out of or related to this Agreement, will be governed by the laws of the State of Colorado, U.S.A. without regard to its choice of law principles. Subject to Section 16 (Disputes), all disputes or actions rising from or relating to this Agreement shall be submitted exclusively to the jurisdiction of the state and federal courts located in Denver, Colorado, U.S.A., and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
EXPORT CONTROLS. The Company Systems, including without limitation software and content, and related technology are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Purchaser agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Purchaser will indemnify and hold Company and all third-party providers harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Purchaser of its obligations under this Section.
FORCE MAJEURE. Neither party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement by either party is prevented, restricted or interfered with by reason of a Force Majeure event, the party whose performance is so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such Force Majeure event, provided that the party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
NOTICE. All notices, reports, consents, authorizations and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) email; or (4) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused), or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
ASSIGNMENT & TRANSFER. Notwithstanding the Use Site restrictions in Section 4.8 above, this Agreement and any rights and obligations hereunder may not be transferred or assigned by either party, whether by operation of contract, law or otherwise, without the other party’s prior written consent, and any attempted assignment without such consent shall be null and void. Notwithstanding the foregoing, (i) such prior written consent shall not be required in connection with Company’s assignment of this Agreement in connection with the transfer or sale to a third party of all or substantially all of Company’s business that relates to this Agreement; and (ii) Company may subcontract its obligations under this Agreement without consent, provided that Company remains responsible for compliance with its obligations under this Agreement. For the avoidance of doubt, Purchaser hereby agrees that, without the prior written consent of Company, Purchaser shall not, directly or indirectly, sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of, or enter into any agreement, arrangement or understanding to sell, any Company equipment or Services (collectively a, “Transfer”). Purchaser must notify Company a minimum of 30 days prior to any request to Transfer Company equipment or Services to an assignee of Purchaser (“Purchaser Assignee”). In the event that Company approves such a Transfer, Purchaser Assignee must execute an agreement that is identical to this Agreement (except to reflect the name of Purchaser Assignee). If Purchaser Assignee fails to execute such an agreement, Purchaser shall be responsible for all monies owed through the remainder of this agreement.
ADDITIONAL TERMS. Except as expressly set forth herein, this Agreement may be modified or amended only by a written agreement signed by both parties. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, such provision will be removed or replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent possible under applicable law, and the remaining provisions will remain in full force and effect. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” Except as provided for in this Agreement, no term of this Agreement will be construed to confer any third-party beneficiary rights on any non- party. All waivers under this Agreement must be in writing and signed by an authorized representative of the waiving party. Any waiver or failure to exercise any right under this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement
The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other nor is neither party authorized to make any representation, contract, or commitment on behalf of the other party. In the event of any litigation or other proceeding between the parties relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other reasonable costs incurred in connection therewith and in pursuing collection, appeals, and other relief to which that party may be entitled. Purchaser hereby grants Company permission to use Purchaser’s name or logo for public press releases and customer stories. Company provides the Company Systems, including related software and technology, for federal government end use as a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Company Systems are provided to the Purchaser with only those restricted rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.