TERMS AND CONDITIONS
1. Scope of Agreement. This Agreement permits Client to receive and use Provider’s services and platforms that Provider makes available for a fee and sets forth the terms and conditions under which the services and platforms will be delivered and utilized. This Agreement will govern Client’s services commencing on the Effective Date, as well as any future quotes/orders placed by Client that reference this Agreement.
- 2.1 Affiliate(s): all entities that (directly or indirectly) control, are controlled by or are under common control with that party, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity
- 2.2 Authorized User(s): those employees, agents and Contractors of the Client who are authorized by the Client to access and use the Services and Documentation, as further described in Section 3, below, and the Quote.
- 2.3 Client Data: the data, content, or information, as defined below, input into the Services by the Client, Authorized Users, or on the Client’s behalf, for the purpose of using the Services or facilitating the Client’s use of the Services.
- 2.4 Client Materials: Client technical data, computer programs, files, documentation, and/or other materials that are necessary for the performance of Professional Services by Provider.
- 2.5 Confidential Information: Client Data, and any and all code, inventions, know-how, business, technical and financial or other information that one party receives from the other, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, Documentation, or technical information provided by Provider (or its agents), performance information relating to the Service, and the terms of this Agreement will be deemed Confidential Information of Provider without any marking or further designation.
- 2.6 Content: information that is obtained by Provider and provided to Client via the Services.
- 2.7 Contractor(s): any third-party providing services or seeking to provide services to or on behalf of Client and to which or whom Client has provided a valid password or other means of accessing and using the Service.
- 2.8 Deliverables: means deliverables identified in a Quote or otherwise provided to Client as part of Professional Services performed by Provider.
- 2.9 Documentation: any document(s) made available to the Client by Provider, in any format including by URL, from time to time that set(s) out a description of the Services and the user instructions for the Services.
- 2.10 Personal Data: any information relating to an identified or identifiable natural person.
- 2.11 Professional Services: implementation or other services identified in and provided pursuant to a Quote.
- 2.12 Quote: a quote/order form for Services, including Exhibit 2 to this Agreement, and any other quote/order form substantially in such form, executed by Client and Provider which details the Services or Professional Services to be provided by Provider. Once executed, Quotes shall be binding upon both parties.
- 2.13 Service(s): means the features, functionality and services that are ordered by Client on a Quote and made available online to Client by Provider under this Agreement, excluding Professional Services. Services are not Deliverables and will not become Deliverables by virtue of reference to Services in a Quote.
- 2.14 Subscription: means Client’s ability to access and use a Service, as described in Article 3, for a predetermined period of time.
- 2.15 Subscription Fees: the fees payable by the Client to Provider for a Subscription to the Services, as set out in a mutually executed Quote.
- 2.16 Term, Initial Term, and Renewal Term: each have the definition given to them in Section 9.1.
- 2.17 Third Party: any individual or entity other than: (a) Provider, (b) its Affiliates, (c) Client, or (d) a Contractor
- 3.1 Subscription. Subject to all of the terms and conditions of this Agreement, including payment of applicable Subscription Fees: (a) Provider shall provide and Client may access and use the Service(s), solely for the Client’s internal business operations, and (b) Provider hereby grants Client and Client hereby accepts a non-transferable, non-sublicensable, non-exclusive, revocable license to use the Documentation and Content, solely for Client’s internal business operations; each for the term of the Subscription set out in the applicable Quote, but each only in accordance with this Agreement (including its exhibits), the Documentation, and any additional limitations set forth on the applicable Quote.
- 3.2 Use by Contractors. Subject to the terms and conditions of this Agreement, Contractors may use the Services and applicable Documentation under Client’s Subscriptions, provided that (a) such use is only for Client’s benefit and internal use, (b) Client agrees to remain responsible for each such Contractor’s compliance with the terms and conditions of this Agreement and (c) upon request, Client will identify each such Contractor. Use of the Service by the Contractors and Client in the aggregate must be within the subscriptions and user restrictions provided for under this Agreement and the applicable Quote.
- 3.3 Authorized Users. Client covenants and agrees that:
- 3.3.1 When a password is required to access the Service, each Authorized User shall keep a secure password for use of the Services and shall keep that password confidential; and
- 3.3.2 Client shall be fully responsible for any use of the Service by an Authorized User, and all such use will comply with this Agreement.
- 3.4 Support. Provider shall provide Support as set forth in Exhibit 3. Client understands and acknowledges that Provider may outsource or use Affiliates to provide some operations and functions associated with the Service. Notwithstanding any such outsourcing, Provider shall be responsible for operating, maintaining, and providing access to the Service in accordance with the provisions of this Agreement, including Exhibit 3.
- 4.1 Client shall not, and shall not allow any Authorized User or Third Party to:
- 4.1.1 reverse engineer the Services, or any component of them, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of software used in the Service by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Provider);
- 4.1.2 distribute, sell, sublicense, rent or otherwise transfer the Service;
- 4.1.3 recreate, lease or use the Services for time sharing, hosting, service provider or like purposes;
- 4.1.4 in any way use the Services and/or Documentation to provide Services to a Third Party;
- 4.1.5 post or introduce any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, through or to the Services, that causes or is designed to cause either to cease functioning, or to disrupt, disable, harm or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of, or to allow Client or any other person to access, or damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations of or on, the Services or any software, firmware, hardware, computer system or network of Provider or any Third Party;
- 4.1.6 remove any product identification, proprietary, copyright or other notices contained in the Services;
- 4.1.7 modify any part of the Services, create a derivative work of any part of the Services, or incorporate the Services into or with other software, except to the extent expressly authorized in writing by Provider; or
- 4.1.8 publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Services.
- 4.2 Client shall prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Provider.
- 5.1 Ownership. Notwithstanding anything to the contrary contained in this Agreement, Provider and its suppliers have and will retain all rights, title and interest in and to the Service and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof (including any such materials to the extent incorporating any ideas, feedback or suggestions of Client (“Feedback”). Client acknowledges that it is obtaining only a limited right to use the Service and Documentation, and that irrespective of any use of the words “purchase,” “sale,” or like terms in this Agreement or elsewhere, no ownership rights are being conveyed to Client under this Agreement or otherwise. Client acknowledges that Provider is free to exploit, use, license and distribute, any Feedback provided to Provider as it sees fit, without obligation of compensation or attribution.
- 5.2 Client Data and Aggregate Data. As between Provider and Client, Client owns or has license to all rights, title, and interest in and to all of the Client Data and has sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Client Data. Client hereby grants to Provider and its Affiliates a non-exclusive, perpetual, worldwide, paid-up, and irrevocable license to use, process, manipulate and/or modify, copy, perform, compile and create derivative works from the Client Data, solely to provide the Service, for the analysis and improvement of the Service, or as may be legally required, while at all times treating Client Data as Confidential Information. All other data and information, including aggregated or deidentified data that is collected, transmitted, recorded, or accessed by or through the Service, and all data, reports, derivative works, compilations, modifications, and other materials created from or with use of such data will be, in each case, the sole and exclusive property of Provider.
- 5.3 Client Marks. Client grants Provider a non-exclusive, non-transferable, fully revocable license to use the trademarks, trade names, service marks, slogans, designs, labels, logos and other source-identifying symbols provided by Client to Provider (the “Client Marks”): (a) during the Term, (b) for use in providing Services to the Client, (c) only in accordance with Client’s trademark usage guidelines provided to Provider, (d) only in a manner which preserves the rights of Client, and (e) only in materials approved in advance by Client. All rights in and to and ownership of all Client Marks are vested in Client absolutely. All uses of the Client Marks will inure to the benefit of Client. Provider has no right, title, or interest in the Client Marks aside from this license. Upon termination or expiration of this Agreement, or notice from Client, the license to the Client Marks will automatically expire and Provider will immediately cease using the Client Marks.
6.Privacy and Security.
- 6.1 Provider Administration. Provider may administer the Service from its offices or those of its Affiliates or service providers at various locations throughout the world. Client Data is stored in the United States, though Provider may access such data from and/or process such data outside the United States when required to provide support and maintenance. If Provider accesses or processes Client Data outside of the United States, Provider will ensure that an adequate level of protection is in place as described in Section 6.3 and as otherwise required by applicable law. Client acknowledges that in the event of conflict of privacy laws or practices in Client’s jurisdiction and those in the domicile of the entity hosting the Service, the law applicable in the domicile of the entity hosting the Service will have precedence at all times.
- 6.2 Processing of Personal Data. The Service is not intended to process Personal Data and Client acknowledges the same and hereby agrees not to use the Service to process the same. If Client, or a Third Party on Client’s behalf, does input or provide Personal Data into the Service, Client is responsible for using the Service and sending Personal Data to Provider in compliance with all applicable data privacy laws. Without limiting the generality of the foregoing, Client must ensure that data subjects receive notices or grant consent, as legally required. Client agrees to indemnify, defend, and hold Provider harmless from and against all claims, demands, actions, or causes of action arising out of any breach of the foregoing obligations.
- 6.3 Security. Provider will maintain an adequate level of protection for Client Data, including administrative, physical, and technical safeguards for the security, protection and confidentiality of Client Data, by operating and implementing an Information Security Management System (ISMS) in compliance with a recognized industry standard. Upon request, Provider will provide Client with Third Party certification of Provider’s compliance with any standard obtained. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy will be for Provider to use commercially reasonable efforts to restore the lost or damaged Client Data from the latest backup of such Client Data maintained by Provider. In no event will Provider be responsible for any loss, destruction, alteration, or disclosure of Client Data caused by any person not under Provider’s control.
7. Implementation and Other Professional Services.
- 7.1 Professional Services Generally. Any Professional Services to be provided under this Agreement will be subject to a Quote. Provider agrees to use commercially reasonable efforts to render the Professional Services by the delivery dates specified in the applicable Quote, if any are specified. Any Quote will become part of this Agreement upon execution by both parties. Client agrees to provide Provider with access to Client Materials, resources, personnel, equipment, or facilities and agrees to reasonably cooperate to the extent such access and/or cooperation is necessary for the performance of Professional Services. Client will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence or consistency of Client Materials or its personnel. To the extent that Client does not provide the foregoing access and cooperation required for Provider to perform the Professional Services or deliver the Deliverables, Provider will be excused from performance until such items/access are provided.
- 7.2 Initial Scope of Work for Implementation and Related Services. If applicable, any initial implementation and related Professional Services will be provided pursuant to this Agreement and the Quote attached hereto as Exhibit 2.
- 7.3 Changes to Scope of Professional Services. Professional Services, as specified in a Quote, may only be amended via a mutually executed change order or amendment.
- 7.4 Acceptance of Professional Services and Deliverables. Provider will be deemed to have delivered any Professional Services or Deliverables identified in a Quote on the date on which Provider delivers the Professional Services or Deliverables that conform, in all material respects, to the specifications expressly set forth in a Quote. Client shall be responsible for promptly testing and evaluating such Professional Services or Deliverables.
- 7.5 Client Materials. Client hereby grants Provider a limited right to use any Client Materials, solely for the purpose of performing the Professional Services for Client. Client owns and will retain ownership (including all intellectual property rights) in the Client Materials.
- 7.6 Deliverables. To the extent a Deliverable includes software or other copyrightable material, Provider hereby grants Client a worldwide, royalty-free, non-exclusive, non- transferable license to use the Deliverable, but only for Client’s internal purposes for the enhancement of its usage of the Service during the Term, and otherwise in accordance with the description of Client’s use and any restrictions set forth in this Agreement and /or the applicable Quote. Provider owns and will retain ownership (including all intellectual property rights) in and to all Deliverables (excluding any Client Materials) and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any Feedback). Even if listed or identified in a Quote, neither the Service nor any component thereof will be considered a Deliverable.
8. Fees and Payment.
- 8.1 Subscription Fees. The fees for the Subscriptions provided under this Agreement are set out on the Quote(s). Subscription Fees are due in advance, at the frequency specified in the applicable Quote(s). Subscription Fees for any Renewal Term (defined below), renewed Subscriptions, or additional Subscriptions to Provider Services will be based on the then list price for Subscriptions to the Services provided, unless the parties agree in writing to different pricing.
- 8.2 Professional Service Fees. For Professional Services, Client will pay Provider the amounts and at the times set forth on the applicable Quote. If not specified, Provider will invoice, and Client will pay Provider, for Professional Services at Provider’s then-current customary rates. Client agrees to reimburse Provider for travel, lodging, and meal expenses incurred in the course of performing the Professional Services at any location other than Provider’s site, and any other expenses specified in the Quote.
- 8.3 Payment. All payments are non-refundable (except as expressly set forth in this Agreement) and will be made in U.S. dollars unless otherwise indicated on a Quote. Client will pay the undisputed amounts of any invoice within thirty (30) days of the invoice date unless otherwise specified in the applicable Quote. Client must notify Provider of any dispute over an invoice amount in writing within twenty (20) days of the invoice date or the dispute will be waived. Client’s notice must inform Provider of the specific amount of and basis for the dispute. Client will pay undisputed invoice amounts without set-offs of any kind, and the parties agree to work in good faith to resolve any dispute within ten (10) business days from the date Provider receives notice of the dispute. Client shall be responsible for all taxes, withholdings, duties, and levies arising from the Quote (excluding taxes based on the net income of Provider). Any late payments will be subject to a service charge equal to one and one half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less. Provider will be entitled to suspend any Service or the performance of any Professional Services at any time following Client’s failure to make a payment when due.
- 8.3.1 Provisional Licenses. Provisional Licenses are sent out to the Client within 24 hours of order placement. The provisional license contains a license valid for 60 days from purchase. A full-term license is provided within 24 hours of full payment. Without a full-term license, Bacon will be unusable.
9. Term of Agreement.
- 9.1 Term. This Agreement will have an initial term commencing upon the Effective Date and extending for the term set forth on a Quote, or if none is specified, one (1) year (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for consecutive renewal terms equal to the Initial Term (each a “Renewal Term”). Either party may elect not to renew the Agreement at the end of the Initial Term or any Renewal Term by giving written notice to the other at least sixty (60) days prior to the end of the then-current Term. The Initial Term and each Renewal Term are referred to as the “Term.” If the performance period of an exhibit or the term of a Subscription set out in a Quote extends beyond the Term expiration date, this Agreement will be automatically extended until such performance period or Subscription is completed.
- 9.2 Termination. Either party may terminate this Agreement (including all related Subscriptions, Quotes, and exhibits), if the other party: (a) fails to cure any material breach of this Agreement within forty-five (45) days after written notice of such breach, provided this right of termination will apply only to the Quote or exhibit affected if the material breach does not affect the entire Agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Notwithstanding the foregoing, Provider may terminate this Agreement by providing ten (10) days’ prior written notice if Client fails to make a payment when due. If a Client breach is such that it cannot be cured, then Provider will have the right to terminate this Agreement, a Subscription, or Quote immediately. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- 9.3 Effect of Termination.
- 9.3.1 Termination of this Agreement, any Subscription, or any Quote pursuant to Section 9.2 by Provider does not affect any sums due to Provider and all fees and other charges will be payable immediately, including fees or charges that are due or would have become due for the remainder of the Term of the Subscription had there been no termination.
- 9.3.2 Upon any termination of this Agreement or of all Subscriptions, Client’s right to use the Services will immediately terminate and Client shall return to Provider all tangible portions of the Services, including any Documentation provided by Provider, within fourteen (14) days after termination. In addition, Provider will return Client Data to the Client in a format reasonably agreed upon between the parties or destroy the same.
- 9.3.3 Survival. Sections 2 (Definitions), 4 (Restrictions), 5 (Ownership), 9 (Term of Agreement), 10 (Provider Limited Warranty and Disclaimer), 11 (Client Warranties), 12 (Limitation of Remedies and Damages), 14 (Confidential Information), 15 (General), and any accrued obligation for fees or to make a payment under Section 8 will survive any termination or expiration of this Agreement.
10. Provider Limited Warranty and Disclaimer.
- 10.1 Limited Warranty. Provider warrants to Client as follows: (a) Provider has all rights and authority necessary to enter into this Agreement and to carry out its terms and conditions; (b) Services will be performed by qualified personnel using commercially reasonable efforts; (c) Provider will perform any Professional Services in a professional and workmanlike manner; (d) Provider shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, and orders in its performance under this Agreement; and (e) to Provider’s knowledge, the Services do not contain any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, that is designed to cause Client’s computers, systems or software to cease functioning, or to disrupt, disable, harm or otherwise impair them in any manner. The above warranties will not apply to any modifications made to the Service by Client or any Third Party not acting at Provider’s direction.
- 10.2 Remedy for Failure of Warranty Regarding Professional Services or Deliverables. Provider will, at its sole discretion and as its sole liability and obligation to Client for failure to provide Professional Services or Deliverables meeting this warranty: (a) re-perform the non-conforming Professional Services; or (b) re-deliver the non-conforming Deliverables at no additional cost to Client, if notified of the non-conformity within fourteen (14) days of delivery of the applicable Professional Service or Deliverable; or (c) terminate the applicable Quote and refund the portion of fees attributable to such non-conforming Professional Services or Deliverables.
- 10.3 Disclaimer. THIS ARTICLE 10 IS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 10 ALL SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PROVIDER NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Client’s use of certain Services is dependent on the availability and coverage of wireless networks, telecommunications networks and the Internet, which involve facilities owned and operated by Third Parties. PROVIDER IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF ANY THIRD-PARTY SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION THOSE REQUIRED TO USE THE SERVICES.
11. Client Warranties. Client warrants to Provider as follows: (a) Client has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; (b) Client is the owner or licensee of all Client Data and Client Materials with the right to grant Provider the licenses thereto as set out in this Agreement and has obtained any applicable consents as may be required by law; (c) Client Data and Client Materials do not infringe upon any copyright, patent, trademark, or other intellectual property or proprietary rights of any Third Party; and (iv) Client will comply with all requirements and restrictions under this Agreement, as well as all applicable laws (including data privacy laws), rules, and regulations.
12. Limitation of Remedies and Damages.
- 12.1 EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY PURSUANT TO SECTION 14 (IN EITHER EVENT, TO THE EXTENT DIRECT DAMAGES ARE CHARACTERIZED BY A COURT AS INDIRECT DAMAGES), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- 12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR EITHER PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY PURSUANT TO SECTION 14 (IN EITHER EVENT, TO THE EXTENT DIRECT DAMAGES ARE CHARACTERIZED BY A COURT AS INDIRECT DAMAGES), AND AS SET FORTH IN SECTION 12.3, PROVIDER’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CLIENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO PROVIDER IN THE PRIOR TWELVE (12) MONTHS PURSUANT TO THIS AGREEMENT FOR THE PROFESSIONAL SERVICE(S) OR SERVICE ASSERTED TO HAVE CAUSED THE DAMAGES.
- 12.3 THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS. IN ADDITION, SECTIONS 12.1 AND 12.2 WILL NOT APPLY WITH RESPECT TO ANY CLAIM(S) ARISING UNDER ARTICLE 3 (“SUBSCRIPTIONS”) OR ARTICLE 4 (“RESTRICTIONS”).
- 12.4 The parties agree that the limitations specified in this Article 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- 13.1 Provider Indemnification. Provider shall defend and indemnify Client from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark or other U.S. intellectual property right asserted against Client by a Third Party based upon Client’s use of the Service in accordance with the terms of this Agreement, provided that Provider shall have received from Client: (a) prompt notice of such claim (but in any event notice in sufficient time for Provider to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, so long as such settlement does not involve any admission of liability or payment by Client without Client’s written consent; and (c) all reasonable, necessary cooperation of Client. If Client’s use of the Service or any aspect of it is, or in Provider’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Provider may, in its sole discretion: (i) substitute for the Service substantially functionally similar services; (ii) procure for Client the right to continue using the Service; or if (i) and (ii) are commercially impracticable, (iii) terminate the Agreement or the infringing portion of the Service and refund to Client the unearned Subscription Fees paid by Client related to the terminated Services. The foregoing indemnification obligation of Provider will not apply (and in no event will Provider have any liability): (A) if the Service is modified by any party other than Provider; (B) if the Service is combined with other non-Provider products; (C) to any unauthorized use of the Service; (D) to any Third Party code, or (E) if the alleged infringement is related to any modifications to the Service made to comply with Client’s specifications. THIS SECTION 13 SETS FORTH PROVIDER’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- 13.2 Client Indemnification. Upon Provider’s request, Client agrees to indemnify and defend Provider and its Affiliates from and against any and all claims, lawsuits, demands, actions or other proceedings brought against it by any Third Party due to, arising out of or related to: (a) Client’s or its Authorized Users’ use of the Service; or (b) Client’s or its Authorized Users’ violation of any law, regulation or Third Party rights, either provided that Client will have received from Provider: (i) prompt notice of such claim (but in any event notice in sufficient time for Client to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, so long as such settlement does not involve any admission of liability or payment by Provider without Provider’s written consent; and (iii) all reasonable necessary cooperation of Provider. Client shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Provider in connection with or arising from any such claim, lawsuit, action, demand or other proceeding.
14. Confidential Information. Except as expressly authorized herein, any party receiving Confidential Information of the other will hold that Confidential Information in confidence and not disclose any Confidential Information. A receiving party may only use Confidential Information to use the Services, provide the Services and/or Professional Services, or otherwise perform an obligation or exercise a right under this Agreement. The receiving party’s nondisclosure obligation will not apply to information which that party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of its own; (c) is rightfully obtained by the receiving party from a Third Party without breach of any confidentiality obligation; (d) is independently developed by employees or others acting on behalf of the receiving party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party). The receiving party acknowledges that remedies at law may be inadequate to protect the disclosing party against any actual or threatened disclosure of Confidential Information by the recipient party or its representatives and, without prejudice to any other rights and remedies otherwise available to the disclosing party, recipient party agrees that disclosing party may seek injunctive or other equitable relief in the disclosing party’s favor preventing disclosure, without proof of actual damages or the requirement of posting a bond or other security.
- 15.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party will assign this Agreement (or any part thereof) without the advance written consent of the other party, except that Provider may assign this Agreement in connection with a merger, acquisition, or similar corporate restructuring. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
- 15.2 Severability. If any court of competent jurisdiction adjudges any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
- 15.3 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Jurisdiction and venue for actions related to the subject matter hereof are the state courts of the State of Delaware.
- 15.4 Notices and Reports. Any notice which may be or is required to be given under this Agreement will be in writing, and will be deemed to have been received: (a) when delivered personally; (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt. Either party may change its notice address by written notice to the other.
All notices related to or arising under this Agreement will be addressed to Client at the address set forth above and to Provider as follows (or as subsequently noticed by that party): Bacon Unlimited Inc, Attn: Legal Department – Important Legal Notice, 578 Washington Blvd. #910 Marina del Rey, CA 90292.
- 15.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
- 15.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any pre-printed order form, purchase order, or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- 15.7 Precedence. The terms of this Agreement, including its Exhibits and any Quotes, will exclusively govern the purchase, installation and use of Services and Professional Services by the Client. Any terms and conditions on either party’s purchase orders, confirmations or other pre-printed forms are of no force or effect and are superseded by the terms of this Agreement. The terms of this Agreement will control, in the case of any conflict between the terms of this Agreement and the terms of any Quote or other Exhibit. Notwithstanding the foregoing, a Quote may modify the terms of this Agreement if: (a) the Quote expressly identifies the term to be modified; (b) the Quote expressly states the parties’ intent to modify the term; and (c) the Quote is signed by both parties. Any such modification will apply only to the specific Quote in which it is made.
- 15.8 Official Language. The official language of this Agreement and of any related documents is English.
- 15.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- 15.10 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to: any strike, blockade, pandemic/epidemic, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
- 15.11 U.S. Government End-Users. The software that powers the Service is commercial computer software. If the user of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of such software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service and its underlying software were developed fully at private expense. All other use is prohibited.
- 15.12 Export Compliance. Client acknowledges that the software accessible via the Service is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Client shall not and shall not allow any third-party to remove or export from the United States or allow the export, re-export or access of any part of the Service or any direct product thereof: (a) into or from (or to or by a national or resident of) any embargoed or terrorist-supporting country; (b) to or by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to or from any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.