1.1
“Affiliate” means any entity (a) controlled, directly or indirectly, by, under common control with, or controlling a party to this Agreement, and specifically includes subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control, where “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, (b) in any event and without limitation of the previous sentence, owning the majority of the voting stock, shares, securities or assets of another entity, but in each case only for so long as such ownership or control will continue.
1.2
“Authorized Install Site” means Customer’s physical location(s) specified in the Order where Customer may install the Software and/or Device(s).
1.3
“Authorized Use Location” means Customer’s physical location(s) specified in the Order from where Customer’s users (i.e. employees, contractors) are authorized to access and use the XaaS Services, Software and/or Device(s).
1.4
“Customer Data” means Customer’s data and materials of any kind submitted or provided by Customer to or through the OvationData Offerings including any data input into the XaaS Services by Customer’s or its Affiliates’ users or data from third party sources provided or enabled by Customer.
1.5
“Device” means an OvationData or third party physical device, hardware, computer, or storage system provided by OvationData to Customer for use with the other OvationData Offerings set forth in the Order, and any updates and upgrades thereto provided or made available to Customer by OvationData under this Agreement.
1.6
“Digital Storage Location” means the OvationData controlled or managed location(s) at which Customer’s digital data is physically stored and/or accessed and uses other OvationData Offerings purchased by Customer at set forth in the Order. Digital Storage Locations are only applicable if purchased by Customer as set forth in the Order.
1.7
“Effective Date” means the effective date of this Agreement as set forth in the preamble to this Agreement.
1.8
“Order” means the order schedule pursuant to which from time to time Customer orders OvationData Offerings provided by OvationData. The initial Order is attached hereto as Schedule A.
1.9
“Order Attachment(s)” means one or more attachments to the Order which detail the additional specifications and requirements for the OvationData Offerings set forth in the Order.
1.10
“Order Effective Date” means the date an Order becomes effective and is generally set forth in the first line of the first table of the applicable Order.
1.11
“OvationData Offerings” means collectively or individually the products and services offered by OvationData to Customer as set forth in the Order including any XaaS Services, Software, Devices, Support Services, and Professional Services (defined below).
1.12
“SaaS Services” means the online, web-based software-as-a-service (SaaS) for the Software made available to Customer by OvationData as set forth in the Order, including any updates and upgrades thereto provided or made available to Customer by OvationData under this Agreement.
1.13
“Software” means OvationData’s proprietary software agents or modules in object code form provided by OvationData to Customer (including as pre-loaded on a Device) and set forth in the Order, including any updates and upgrades thereto provided or made available to Customer by OvationData under this Agreement.
1.14
“STaaS Services” means the online, nearline or offline storage-as-a-service (STaaS) of digital information on any form of physical media (magnetic tape, magnetic disk, optical media) managed by OvationData at its controlled locations and/or the public cloud and made available to Customer by OvationData as set forth in the Order, including any updates and upgrades thereto provided or made available to Customer by OvationData under this Agreement.
1.15
“Stewardship Services” means the specific Professional Services regarding the preservation of digital information in conjunction with STaaS Services and made available to Customer by OvationData as set forth in the Order, including any updates and upgrades thereto provided or made available to Customer by OvationData under this Agreement.
1.16
“Subscription Period” or “Subscription” means the period set forth in an Order during which Customer may use, and OvationData will provide, the OvationData Offerings.
1.17
“Support Services” means the support and maintenance services for the OvationData Offerings described in the Order Attachment(s).
1.18
“Transcription Services” means the specific Professional Services regarding copying, converting, reformatting, transforming, remediating of digital information from one media format and/or one file format to another and made available to Customer by OvationData as described and set forth in the Order.
1.19
“Unit” means an item described in the applicable Order upon which the fees set forth in the Order are calculated including Authorized Install Site, Authorized Use Location, Digital Storage Location, volume of data managed, terabytes (TB), and authorized number of users. “TB” is calculated on the actual number of bytes of data managed (divided by 1000*4), and then rounded to the next whole number.
1.20
“XaaS Services” means anything-as-a-service (XaaS) and refers to the SaaS Services and/or STaaS Services set forth in the Order.
2.1
Implementation and Professional Services. In connection with the setup and provision of the OvationData Offerings, OvationData will provide certain implementation services (“Implementation Services”) and other professional services from time to time during the Subscription Period (together, referred to as “Professional Services”) as described in the Order Attachment(s).
2.2
XaaS Services. Subject to the terms and conditions of this Agreement, OvationData will make available to Customer on a non-exclusive, non-sublicensable, non-transferable basis access to the XaaS Services only: (a) during the Subscription Period, (b) for Customer’s internal use (and not for resale or license to third parties), (c) subject to the Units set forth in the Order, and (d) in accordance with any additional OvationData rights and limitations specified in the Order and/or Order Attachment(s). Customer will be responsible for providing and maintaining its own data systems, network connectivity, electric power, and the hardware and software infrastructure necessary to access the XaaS Services through the Internet or its internal Internet (collectively, the “Customer Infrastructure”), and OvationData will not be liable in any way for any failures arising from or relating to the Customer Infrastructure.
2.3
Software and Device License. Subject to the terms and conditions of this Agreement, OvationData grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Software and/or Device(s) only: (a) during the Subscription Period, (b) for Customer’s internal use (and not for resale or license to third parties), (c) subject to the Units set forth in the Order, (d) if applicable, for use with the XaaS Services or other OvationData Offerings purchased by Customer in the Order, and (e) in accordance with any additional OvationData rights and limitations specified in the Order and/or Order Attachment(s). If installed at a Customer’s site, Customer may make one backup copy of the Software for archival or disaster recovery purposes. The Software and Device are licensed and not sold. As between OvationData and Customer, OvationData will continue to own all rights, title and interest in any provided Software and/or Device. If installed at a Customer’s site, Customer is responsible for loss of or damage to the Device while in Customer’s control, except normal wear and tear. Customer will keep the Device free and clear of all levies, liens and encumbrances. Customer will not remove from the Device any copyright notices, nameplates, decals or other indicia of OvationData ownership.
2.4
Support Services. Subject to payment of the Support Services fees, if any, set forth in the applicable Order, OvationData will provide Customer with the designated Support Services described in the Order Attachment(s) during the applicable Subscription Period. OvationData may modify or otherwise change its Support Services, but will not take any such action during a Subscription Period that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Period. Any customization, Professional Services, or any other support not included in the Support Services will be subject to a separate Order and additional fees.
2.5
Reservation of Rights. OvationData reserves the right to change, replace, exchange, swap, or substitute any licensed Software or Device hereunder with equal or better quality, standard or features at any time (with or without notice) at no additional charge to Customer.
2.6
Security. OvationData will operate an information security program designed to protect Customer Data and utilizing industry standard policies and technologies.
3.1
Orders. The initial Order under this Agreement is as set forth in Schedule A attached hereto. Subsequent purchases will be made by mutual execution of additional Orders. Any contractual terms and conditions, preprinted or otherwise, set forth in a Customer-issued purchase order, will be of no force and effect. Any such purchase order will be solely for the purpose of fulfilling Customer’s internal accounting processes and requirements.
3.2
Affiliate Orders. Customer Affiliates may order OvationData Offerings under this Agreement by either of the following methods: (a) pursuant to an Order executed by Customer and OvationData, in which case Customer will be responsible for such Affiliate’s compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to an Order executed by such Affiliate and OvationData under which such Affiliate agrees to the terms and conditions of this Agreement and will be “Customer” for all purposes under this Agreement with respect to such Order only. With respect to any such Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.
3.3
Fees; Payment Terms. Customer will pay OvationData the amounts set forth in the Order in accordance with the payment schedule set forth therein. Unless otherwise set forth in the Order, payment from Customer is due within 30 days from the date of invoice. In OvationData’s sole discretion, Customer may be charged a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any undisputed amount not paid when due. OvationData also reserves the right to change the fees from time to time on each anniversary date of the Subscription Period, provided that it will not increase such fees more than up to an amount equal to the greater of five percent or the percentage increase in the published Consumer Price Index (all urban consumers) for all metropolitan areas over the preceding year. Except as expressly set forth in this Agreement, all fees are non-refundable and non-cancellable.
3.4
Travel and Incidental Expenses. Customer will reimburse OvationData for any reasonable out-of-pocket expenses incurred by OvationData in connection with performing any pre-approved on-site Professional Services at Customer’s location.
3.5
Taxes. OvationData’s fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature (collectively, “Taxes”). Customer is responsible for timely paying all applicable Taxes arising from the performance of this Agreement, excluding only taxes based on OvationData’s income. If OvationData has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides OvationData with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments under this Agreement without withholding or deduction of, or in respect of, any Tax unless required by law. If any such withholding or deduction is required, Customer will, when making the payment to which the withholding or deduction relates, pay to OvationData such additional amount as will ensure that OvationData receives the same total amount that it would have received if no such withholding or deduction had been required.
4.1
Use Guidelines. Customer will use the OvationData Offerings solely as contemplated by this Agreement and will not, and will not authorize any third party to do any of the following with respect thereto: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make available to any third party; (b) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the software or systems of which they are comprised; (c) copy any portion except as expressly provided herein; (d) modify, alter or create any derivative works; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance thereof or the data contained therein; (i) use in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations); (j) use to directly or indirectly engage, or participate, in any business or enterprise in competition with, OvationData; (k) attempt to gain unauthorized access to or related systems or networks; or (l) remove any product identification, copyright, or other proprietary notice.
4.2
Account Activity. Customer will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; and (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the OvationData Offerings. Customer is responsible for its users’ and its Affiliates’ and their users’ compliance with this Agreement. Customer will immediately notify OvationData of any unauthorized account access or use or other suspected security breach of which Customer is aware.
4.3
System Administrator. Customer will provide OvationData contact information for Customer’s system administrator, who is authorized to provide the information required to implement, configure and manage the OvationData Offerings for Customer.
4.4
Account Correspondence. Customer agrees that OvationData may rely on all information provided to OvationData by Customer from the Customer designated e-mail addresses. OvationData may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail or other method mutually agreed by the parties from time to time.
5.1
Term of Agreement. This Agreement will become effective on the Effective Date and will continue thereafter until there have not been any Subscription Periods in effect for a period of one year (“Term”), unless terminated earlier in accordance with the terms of this Agreement.
5.2
Subscription Period. Each Subscription Period will commence on the Order Effective Date and continue for the period set forth in the applicable Order, unless terminated earlier in accordance with the terms of this Agreement. Unless otherwise set forth in the Order, the Subscription Period will automatically renew for additional one year terms, at the then-current terms and conditions (except fees as set forth above), unless either party provides written notice of the intent not to renew at least 90 days before the end of the then-current Subscription Period.
5.3
Termination. This Agreement may be terminated:
(a) by either party in any breach of this Agreement by the other party and such breach has continued uncured for a period of 30 days after the breaching party is given written notice of such breach; or
(b) by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or similar proceedings pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors applies for or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, is wound up or liquidated, or ceases its business activities.
5.4
Effect of Termination. Upon termination of this Agreement, (a) OvationData will immediately cease providing any applicable Professional Services, and deactivate and terminate access to the XaaS Services and any other OvationData Offerings, as applicable, (b) Customer will promptly return to OvationData (at Customer’s expense) or, at OvationData’s request, destroy, the Software and Device(s), (c) Customer will within 30 days promptly pay to OvationData any and all unpaid amounts due under this Agreement, and (d) pursuant to Section 6.4, each party will promptly return or destroy, at the Disclosing Party’s direction, all Confidential Information of the Disclosing Party, and all copies thereof; the method of returning Customer Data managed under a XaaS Service or other OvationData Offering is set forth in the applicable Order Attachment. Upon request, a party will confirm compliance with the foregoing provisions of this Section 5.4. The provisions of Sections 1, 3.2, 3.3, 3.4, 3.5, 3.6, 4, 5.4, 6, 7, 8.5, 9, 10 and 11 will survive any termination or expiration of this Agreement.
5.5
Suspension of Service. OvationData may suspend Customer’s access to and use of the XaaS Services and/or any other OvationData Offerings, as applicable: (a) if OvationData deems it necessary to prevent or terminate any prohibited use, or (b) upon notice to Customer if Customer commits a material breach of this Agreement including failure to pay fees when due. OvationData will provide Customer with notice and an opportunity to remedy such violation or threat (including 15 days written notice if Customer is in default of its payment obligations hereunder) before any such suspension unless OvationData reasonably concludes that Customer’s use of the XaaS Services and/or any other OvationData Offerings, as applicable, is causing an immediate, material and ongoing harm to the security, integrity or availability of the XaaS Services and/or any other OvationData Offerings, as applicable. OvationData will promptly remove such suspension once the applicable violation or threat has been resolved. Suspension will not constitute a termination of the Agreement nor will it relieve Customer of any of Customer’s obligations or liabilities under the Agreement.
6.1
Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, graphic or machine-readable form, and materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, security related information, information on the design or effectiveness of the implementation of security controls by OvationData’s third party service providers, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Disclosing Party, and all other information disclosed to the Receiving Party by the Disclosing Party that is not readily available to the public, and all copies of the foregoing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential. Notwithstanding the foregoing, this Agreement, and all information regarding the performance of the OvationData Offerings (including availability, uptime, and performance benchmarks) will be deemed to be the Confidential Information of OvationData regardless of whether they are so marked. In addition, all information provided by Customer to OvationData, including Customer Data, financial and customer information, will be deemed to be the Confidential Information of Customer regardless of whether they are so marked.
6.2
Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) has entered the public domain through no action or failure to act by the Receiving Party; (b) before disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (c) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
6.3
Obligation of Non-Disclosure. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties except to its Representatives, and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. Any Representative of Receiving Party given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party’s Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 6. The Receiving Party will be liable for any of its Representatives’ failure to comply with such obligation. “Representative” means, with respect to a party, such party’s employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.
6.4
Return of Confidential Information. Each Receiving Party will destroy or return to Disclosing Party all Confidential Information of the Disclosing Party that the Receiving Party possesses upon the expiration or termination of this Agreement; provided, however, to the extent that copies of Confidential Information are contained in the Receiving Party’s off-site backup data storage archives and are not readily accessible for deletion, the Receiving Party will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein. The return of Customer Data under a XaaS Service or other Ovation Data Offering is addressed in Section 5.4.
6.5
Authorized Disclosure. If the Receiving Party is compelled by law, regulation, or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this Section 6. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.
6.6
Injunctive Relief. Each party acknowledges that the Disclosing Party would be irreparably harmed if Receiving Party’s obligations under this Agreement are not specifically enforced and that Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened breach hereof. Accordingly, the Disclosing Party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
7.1
Ownership. As between OvationData and Customer, OvationData owns all right, title, and interest in and to the OvationData Offerings and the hardware and software used to provide the OvationData Offerings (including any customizations, modifications, adaptations, interfaces or derivative works that may be developed as a result of the Professional Services set forth in any Order), OvationData’s Confidential Information, and all intellectual property rights related thereto (“OvationData IP”). As between Customer and OvationData, Customer owns all right, title, and interest in and to the Customer Data, Customer’s Confidential Information, and all intellectual property rights related thereto. This Agreement does not grant any right or license to any intellectual property except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties.
7.2
Personal Data. Each party will be given access to the names and contact information regarding the other party’s personnel (“Business Contact Information”). All Business Contact Information will be considered the exclusive property of the originating party. Each party will not use the other party’s Business Contact Information during the Term of this Agreement except (a) in connection with the OvationData Offerings to be rendered or received hereunder, (b) by OvationData for outreach to Customer’s users and to appropriate Customer personnel concerning product roadmap, product updates, new products and the like, (pursuant to which Customer has obtained such individuals’ consent, to the extent required by law), or (c) at Customer’s request. Subject to the foregoing, each party will comply with all data protection and privacy laws applicable to its processing of Business Contact Information, including the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and the United Kingdom Data Protection Act 2018 (“UK GDPR”). ”). If any Business Contact Information or other personal data is subject to GDPR, UK GDPR or other European data laws and regulations, the parties will enter into a mutually agreed data processing addendum.
7.3
Customer Data; Backup. Customer hereby grants to OvationData a non-exclusive, royalty-free, license to access and use the Customer Data to (a) provide, perform, improve and enhance the OvationData Offerings and for other development, diagnostic and corrective purposes in connection with the OvationData Offerings and (b) disclose such data solely in aggregate and anonymized form in connection with the provision and marketing of the OvationData Offerings. Under no circumstances will any such data be capable of being re-identified unless it is otherwise public information. Customer is solely responsible for maintaining backups and copies of all Customer Data input into the OvationData Offerings and has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. No other rights or licenses are granted by Customer except as expressly set forth herein.
7.4
Suggestions. To the extent that Customer submits to OvationData any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the OvationData Offerings (“Suggestions”), Customer hereby grants OvationData a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Suggestions, including by incorporating the Suggestions into future versions of the OvationData Offerings.
7.5
No Exclusivity. Customer acknowledges that OvationData is in the business of providing development and other services to other customers, and that OvationData will have the right to provide to third parties services and/or products which are the same as or similar to the OvationData Offerings provided to Customer pursuant to this Agreement, and to use or otherwise exploit any OvationData IP in providing such services and/or products. In addition, Customer acknowledges that OvationData will be free to use and employ its general skills, know-how, and expertise, and to use and employ any generalized ideas, concepts, know-how, or expertise gained during the provision of OvationData Offerings hereunder, so long as OvationData acquires and applies such items without disclosure of any Customer Confidential Information.
8.1
Mutual Warranties. Each party represents and warrants to the other party that (a) it has the right to enter into this Agreement and to perform its obligations hereunder, and (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with or constitute a material breach or default of any organizational document, agreement or other writing to which it is a party.
8.2
XaaS Performance Warranty. OvationData warrants that the XaaS Services will materially perform the functions described in the Order Attachment(s). This warranty does not apply if the XaaS Services are not used in accordance with the applicable instructions and training provided by OvationData. If the XaaS Services fail to operate as warranted in this Section 8.2 and Customer notifies OvationData in writing of the nature of the non-conformance, OvationData will make commercially reasonable efforts to promptly repair or replace the non-conforming XaaS Services without charge. The foregoing provides Customer’s exclusive remedy, and OvationData’s exclusive obligation and liability, for breach of the warranty in this Section 8.2.
8.3
Professional Services Warranty. OvationData will perform the Professional Services in a professional and workmanlike manner, and OvationData’s personnel will have sufficient skill, knowledge, and training to perform the Professional Services. If OvationData fails to perform the Professional Services as warranted in this Section 8.3 and Customer notifies OvationData in writing of the nature of the non-conformance, OvationData will make commercially reasonable efforts to promptly remedy any Professional Services performed in a manner that is substantially less than workmanlike or to replace personnel with insufficient skill, knowledge, and training with qualified personnel for performance of the Professional Services. The foregoing provides Customer’s exclusive remedy, and OvationData’s exclusive obligation and liability, for breach of the warranty in this Section 8.3.
8.4
Customer Representations and Warranties. Customer represents and warrants that (a) Customer has the right to furnish all Customer Data to OvationData; and (b) Customer will comply with all laws and regulations applicable to Customer’s use of the OvationData Offerings and provision of the Customer Data to OvationData.
8.5
Disclaimer of Implied Warranties. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR CUSTOMER’S USE OF THE OVATIONDATA OFFERINGS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, OVATIONDATA MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE OVATIONDATA OFFERINGS, THE SUPPORT SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The XaaS Services rely on Customer Data, and OvationData is not liable for the content of the Customer Data or results generated from the Customer Data. Customer acknowledges and agrees that neither OvationData nor its suppliers operate or control the Internet and that: (a) viruses, worms, Trojan horses, or other undesirable data or software exist; and (b) unauthorized users (e.g., hackers) may attempt to obtain access to Customer Data, web site, computers, or networks. OvationData uses reasonable efforts (including firewalls) consistent with industry standards to protect the XaaS Services from such unauthorized use, but subject to the foregoing, OvationData is not responsible for issues related to acts or omissions of third parties.
9.1
OvationData Indemnity. OvationData will defend any action brought against Customer to the extent that it is based upon a third party claim that the XaaS Services as provided by OvationData to Customer under this Agreement and used within the scope of this Agreement, infringe or misappropriate any patent, copyright or trade secret or violates any other intellectual property right of a third party, and OvationData will indemnify Customer from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by OvationData in settlement.
9.2
Injunction. If Customer’s use of any of the XaaS Services hereunder is, or in OvationData’s opinion is likely to be, enjoined due to the type of infringement specified in Section 9.1 above, or if a claim is brought against Customer due to the type of infringement specified in Section 9.1 above, then OvationData may, at its sole option and expense: (a) procure for Customer the right to continue using such XaaS Services under the terms of this Agreement; (b) replace or modify such XaaS Services so that they are non-infringing and substantially equivalent or better in function to the enjoined XaaS Services; or (c) if options (a) and (b) above cannot be accomplished despite OvationData’s commercially reasonable efforts, then OvationData may terminate Customer’s rights and OvationData’s obligations hereunder with respect to such XaaS Services and remit to Customer any pre-paid XaaS Services fees for the remainder of the Subscription Period after the termination.
9.3
Exclusions. Notwithstanding the terms of Section 9.1 above, OvationData will have no liability for any infringement or misappropriation claim of any kind to the extent it results from: (a) information, design, specification, instruction, software, data, or material furnished by or on behalf of Customer; (b) modification or alteration of the XaaS Services not made by or for OvationData, if infringement would have been avoided by the absence of the modifications; (c) the combination, operation or use of the XaaS Services with equipment, devices, software or data (including Customer Data) not supplied by OvationData, if infringement would not have occurred but for such combination, operation or use; (d) use of the XaaS Services in violation of the applicable Order Attachment(s); (e) Customer’s continuing such allegedly infringing activity after being informed by OvationData and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; or (f) Customer’s or its users’ or its Affiliates’ and their users use of the XaaS Services in breach of this Agreement. Sections 9.1 – 9.3 set forth OvationData’s exclusive obligations and liabilities, and Customer’s exclusive remedies, with respect to infringement of intellectual property rights under or in connection with this Agreement.
9.4
Customer Indemnity. Customer will defend any action brought against OvationData to the extent that it is based upon a claim that the Customer Data, as provided by Customer to OvationData under this Agreement and used within the scope of this Agreement, infringes or misappropriates any patent, copyright or trade secret or violates any other intellectual property or other right of a third party or violates applicable law, and Customer will indemnify OvationData from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against OvationData or agreed upon by Customer in settlement.
9.5
Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent, which consent will not be unreasonably withheld or delayed. The indemnifying party will not settle any claim without the indemnified party’s prior written consent, which consent will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.
10.1
EXCEPT FOR A PARTY’S GROSSLY NEGLIGENT, OR WILFUL MISCONDUCT, IN NO EVENT WILL SUCH PARTY BE LIABLE FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING ANY CUSTOMER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT, LOSS OF BUSINESS OR LOSS OF GOODWILL INCURRED BY A PARTY; OR (C) ANY FORCE MAJEURE EVENTS WHICH ARE BEYOND A PARTY’S REASONABLE CONTROL EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO THE OVATIONDATA OFFERINGS OR THIS AGREEMENT.
10.2
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, OR FOR A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE OVATIONDATA OFFERINGS OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO OVATIONDATA DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. NOTHING IN THIS AGREEMENT WILL LIMIT A PARTY’S LIABILITY FOR DEATH OR BODILY INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE OR A PARTY’S LIABILITY FOR FRAUD. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
11.1
Force Majeure. Neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then the party not suffering the force majeure event may terminate the Agreement upon written notice to the other party.
11.2
Publicity. OvationData may identify Customer as a customer on its website using Customer’s name and logo.
11.3
Promotion and Press Release. Customer or OvationData may each issue one press release on or before 30 days after an Order Effective Date. In either case, the press release will be mutually approved before release and such approval will not be unreasonably withheld, conditioned or delayed.
11.4
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver will be effective unless made in writing by the party against whom the waiver is sought to be asserted. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.
11.5
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.
11.6
Assignment. This Agreement will be binding upon and be enforceable by and against the parties hereto and, to the extent permitted hereby, their respective successors and assigns. This Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld. Provided, however, either party may, without the other party’s consent, assign or transfer all or part of this Agreement to any Affiliate or to any successor-in-interest to all or substantially all the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section will be null and void.
11.7
Independent Contractors. The relationship between the parties created by this Agreement is that of independent contractors and neither party will have any authority to create any obligation on behalf of the other.
11.8
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Each party irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Harris County, Texas, for any disputes or claims arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts; provided that nothing in this Section will restrict either party from seeking injunctive relief in a forum of its choice. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.9
Anti-Corruption Laws. Each party is subject to various anti-bribery statutes in the U.S. and around the globe, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Each party represents and warrants in connection with its performance under this Agreement that it (a) has not done and will not do anything to violate these laws and other related laws in the applicable jurisdictions, and (b) has implemented its own anti-corruption policy and will take appropriate, risk-based procedures to abide by its anti-corruption policy for the Term of the Agreement.
11.10
Compliance with Laws. Each of OvationData and Customer will comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Customer will not use the OvationData Offerings, or Customer Data, or allow the transfer, transmission, export, or re-export of the OvationData Offerings, and Customer Data or portion thereof, in violation of any export control laws or regulations administered by the U.S. Department of Commerce, OFAC, or any other government agency or authority. Customer will obtain and bear all expenses relating to any necessary licenses or exemptions with respect to the export from the U.S. of the OvationData Offerings, and Customer Data to any location so as to be in compliance with all applicable laws and regulations. By signing this Agreement, Customer confirms that Customer is not a resident or citizen of any country currently embargoed by the U.S. and that Customer is not otherwise prohibited from receiving the OvationData Offerings, and Customer Data.
11.11
Language. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.
11.12
Notice. Notice to either party (other than routine operational communications) will be sent to the legal email or mailing address shown on the first page of this Agreement. Mailed notices will be sent by commercial courier with tracking capabilities. Email notices are effective upon sending and commercial courier notices are effective upon receipt.
11.13
Construction. The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative and the exercise of any express remedy by either party does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.
11.14
Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties. This signed Agreement or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The parties agree that electronically exchanged or stored copies will be enforceable as original documents and consent to the use of electronic and/or digital signatures for the execution of this Agreement and further agree the use of electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement.
11.15
Order of Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in the Order, Order Attachment(s) and the other referenced documents, then the following precedence will apply: (1) the Order (including the Order Attachment(s), if any); (2) the main text of the Agreement; and (3) the other referenced documents.
11.16
Entire Agreement. This Agreement (together with the Orders, Order Attachment(s) and the other referenced documents referenced herein) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. All amendments and modifications to this Agreement must be in writing, signed by the duly authorized representatives of both parties.
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