The following Terms of Service
(“Terms”) are incorporated into any purchase order form and/or statement of
work, (collectively, referred to as the “Agreement”), effective as of
the date of signature of the Order Form (the “Effective Date”), by and
between Advanced Entry LLC, a New York Limited Liability Company with offices
located at 5308 13th Ave, Suite 167, Brooklyn NY 11219. (“Provider” or “Advanced
Entry”), and the Customer as referenced in the Order Form (“Customer”).
These Terms are meant to be
incorporated into the Order Form such that the Order Form, its Exhibits and
these Terms, together will form one Agreement between Provider and Customer. In
consideration of the mutual covenants, terms, and conditions set forth in the
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions
“Access
Credentials” means any user name, identification number, password, license
or security key, security token, PIN, or other security code, method,
technology, or device, used alone or in combination, to verify an individual’s
identity and authorization to access and use the Services.
“Action”
means any claim, action, cause of action, demand, lawsuit, arbitration,
inquiry, audit, notice of violation, proceeding, litigation, citation, summons,
subpoena, or investigation of any nature, civil, criminal, administrative,
regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate”
of a Person means any other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control
with, such Person. The term “control” (including the terms “controlled by” and
“under common control with”) means the direct or indirect power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise/
“Authorized
Users” means Customer’s employees, consultants, contractors, and agents (a)
who are authorized by Customer to access and use the Services under the rights
granted to Customer pursuant to this Agreement; and (b) for whom access to the
Services has been purchased hereunder.
“Customer
Data” means information, data, and other content, in any form or medium,
that is collected, downloaded, or otherwise received, directly or indirectly,
from Customer or an Authorized User by or through the Services. For the
avoidance of doubt, Customer Data does not include Resultant Data or any other
information reflecting the access or use of the Services by or on behalf of
Customer or any Authorized User.
“Customer
Systems” means the Customer’s information technology infrastructure,
including computers, software, hardware, databases, electronic systems
(including database management systems), and networks, whether operated
directly by Customer or through the use of third-party services, but does not
refer to any of Provider’s Systems or Provider Supplied Systems.
“Documentation”
means any manuals, instructions, or other documents or materials that the
Provider provides or makes available to Customer in any form or medium and
which describe the functionality, components, features, or requirements of the
Services or Provider Materials, including any aspect of the installation,
configuration, integration, operation, use, support, or maintenance thereof.
“Harmful
Code” means any software, hardware, or other technology, device, or means,
including any virus, worm, malware, or other malicious computer code, the
purpose or effect of which is to (a) permit unauthorized access to, or to
destroy, disrupt, disable, distort, or otherwise harm or impede in any manner
any (i) computer, software, firmware, hardware, system, or network; or (ii) any
application or function of any of the foregoing or the security, integrity,
confidentiality, or use of any data Processed thereby; or (b) prevent Customer
or any Authorized User from accessing or using the Services or Provider Systems
as intended by this Agreement. Harmful Code does not include any Provider
Disabling Device.
“Intellectual
Property Rights” means any and all registered and unregistered rights
granted, applied for, or otherwise now or hereafter in existence under or
related to any patent, copyright, trademark, trade secret, database protection,
or other intellectual property rights laws, and all similar or equivalent
rights or forms of protection, in any part of the world.
“Law”
means any statute, law, ordinance, regulation, rule, code, order, constitution,
treaty, common law, judgment, decree, or other requirement of any federal,
state, local, or foreign government or political subdivision thereof, or any
arbitrator, court, or tribunal of competent jurisdiction.
“Losses”
means any and all losses, damages, deficiencies, claims, actions, judgments,
settlements, interest, awards, penalties, fines, costs, or expenses of whatever
kind, including reasonable attorneys’ fees and the costs of enforcing any right
to indemnification hereunder and the cost of pursuing any insurance providers.
“Person”
means an individual, corporation, partnership, joint venture, limited liability
entity, governmental authority, unincorporated organization, trust,
association, or other entity.
“Personal
Information” means information that Customer provides or for which Customer
provides access to Provider, or information which Provider creates or obtains
on behalf of Customer, in accordance with this Agreement that: (i) directly or
indirectly identifies an individual (including, for example, names, signatures,
addresses, telephone numbers, email addresses, and other unique identifiers)];
or (ii) can be used to authenticate an individual [(including, without
limitation, employee identification numbers, government-issued identification
numbers, passwords or PINs, user identification and account access credentials
or passwords, financial account numbers, credit report information, student
information, biometric, genetic, health, or health insurance data, answers to
security questions, and other personal identifiers)][, in case of both
subclauses (i) and (ii), including Sensitive Personal Information as defined
herein)]. Customer’s business contact information is not by itself Personal
Information.
“Process”
means to take any action or perform any operation or set of operations that the
Services are capable of taking or performing on any data, information, or other
content, including to collect, receive, input, upload, download, record,
reproduce, store, organize, compile, combine, log, catalog, cross-reference,
manage, maintain, copy, adapt, alter, translate, or make other derivative works
or improvements, process, retrieve, output, consult, use, perform, display,
disseminate, transmit, submit, post, transfer, disclose, or otherwise provide
or make available, or block, erase, or destroy. “Processing” and “Processed”
have correlative meanings.
“Provider
Disabling Device” means any software, hardware, or other technology,
device, or means (including any back door, time bomb, time out, drop dead
device, software routine, or other disabling device) used by Provider or its
designee to disable Customer’s or any Authorized User’s access to or use of the
Services automatically with the passage of time or under the positive control
of Provider or its designee.
“Provider
Materials” means the Services, Specifications, Documentation, and Provider
Systems and any and all other information, data, documents, materials, works,
and other content, devices, methods, processes, hardware, software, and other technologies
and inventions, including any deliverables, technical or functional
descriptions, requirements, plans, or reports, that are provided or used by
Provider or any Subcontractor in connection with the Services or otherwise
comprise or relate to the Services or Provider Systems. For the avoidance of
doubt, Provider Materials include Resultant Data and any information, data, or
other content derived from Provider’s monitoring of Customer’s access to or use
of the Services, but do not include Customer Data.
“Provider
Personnel” means all individuals involved in the performance of Services as
employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider
Systems” means the information technology infrastructure used by or on behalf
of Provider in performing the Services, including all computers, software,
hardware, databases, electronic systems (including database management
systems), and networks, whether operated directly by Provider or through the
use of third-party services.
“Provider
Supplied Systems” means information technology infrastructure, including
computers, components, servers and network devices, provided by Provider,
whether for a one-time fee, or by monthly rental, as set forth in the Order Form and
SOW, intended to become the property of Customer.
“Representatives”
means, with respect to a Party, that Party’s and its Affiliates’ employees,
officers, directors, consultants, agents, independent contractors, service
providers, sublicensees, subcontractors, and legal advisors.
“Resultant
Data” means data and information related to Customer’s use of the Services
that is used by Provider in an aggregate and anonymized manner, including to
compile statistical and performance information related to the provision and
operation of the Services.
“Sensitive
Personal Information” means an individual’s (i) government-issued
identification number, including Social Security number, driver’s license
number, or state-issued identification number; (ii) financial account number,
credit report information, or credit, debit, or other payment cardholder
information, with or without any required security or access code, personal
identification number, or password that permits access to the individual’s
financial account; or (iii) biometric, genetic, health, or health insurance
data.
“Services”
means the aggregate of the hardware, software, integration services, and other
offerings of Provider as more fully described in the Order Form and SOW.
“Specifications”
means the specifications for the hardware for the Services set forth in the Order Form and
SOW.
“Third-Party
Materials” means materials and information, in any form or medium,
including any open-source or other software, documents, data, content, specifications,
products, equipment, or components of or relating to the Services that are not
proprietary to Provider.
2. Services
2.1
Description
of Services. Provider will provide the Services described in the Order Form and SOW.
(a)
Integration
Services. Provider will provide integration services as described in the Order Form
and SOW. Provider will use its best efforts to integrate Customer Systems with
the Solution. Provider does not guaranty that its Solution will integrate with
Customer Systems, and Customer’s sole remedy in case of any issues arising with
such integration is to either replace Customer’s Systems with a compatible
Provider Supplied System, or a system that Provider otherwise recommends. If
Customer makes a change to any Customer System, or purchases a new Customer
System, Customer will contact Provider in advance, and arrange for a Statement
of Work to be issued in order to integrate such Customer System. Customer
agrees to pay any Fee stated in such Statement of Work. If no such Statement of
Work is issued, Customer will reimburse Provider for any integration of any new
Customer System at the rate of $125 per hour.
(b)
Software.
Provider
will provide access to the Software described in the Order Form and SOW.
Customer understands that the Software may be combined from software developed
by Provider and third parties, and agrees to any terms of any third party
licenses. Customer further understands that Software, and Customer’s Data may
be stored on a combination of Provider’s and third-party systems, both on
Customer’s site, Provider’s data center, and third party cloud hosting sites,
and further understands the security implications of off-site storage.
Customer will indemnify Provider for any claim made against Provider by any
third party for any data breaches of any third party sites, unless caused by
the gross negligence of Provider.
(c)
Hardware. Provider shall
provide the Provider Supplied Systems set forth in the Order Form and SOW.
Unless otherwise provided, all such hardware systems shall either be new or
manufacturer certified refurbished. Provider shall transfer all manufacturer
warranties to Customer, and Provider’s responsibility with regard to any
hardware or manufacturer-supplied software failures shall be limited solely to
the extent provided for in the manufacturer’s warranty.
2.2
Access and Use.
Subject to and conditioned on Customer’s and its Authorized Users’ compliance
with the terms and conditions of this Agreement, Provider hereby grants
Customer a non-exclusive, non-transferable (except in compliance with Section 15.8)
right to access and use the Services during the Term, solely for use by
Authorized Users in accordance with the terms and conditions herein. Such use
is limited to Customer’s internal use. Provider shall provide to Customer the
Access Credentials within a reasonable time following the Effective Date. The
total number of Authorized Users will not exceed the number set forth in the Order Form and
SOW, except as expressly agreed to in writing by the Parties and
subject to any appropriate adjustment of the Fees payable hereunder.
(a)
Terms
and Conditions of Access. As part of the sign-in or sign-up process, users
will be required to given assent to providing Personal Information, including
Sensitive Personal Information. Users will be required to sign a biometric
data storage form in a format as prescribed and acceptable by Provider.
(b)
Customer agrees not to allow Users to access any
systems without signing such forms, and agrees to indemnify Provider for any
User that circumvents such forms.
2.3
Documentation
License. Provider hereby grants to Customer a non-exclusive,
non-sublicensable, non-transferable (except in compliance with Section 15.8)
license to use the Documentation during the Term solely for Customer’s internal
business purposes in connection with its use of the Services.
2.4
Service
and System Control. Except as otherwise expressly provided in this
Agreement, as between the Parties:
(a)
Provider has and will retain sole control over the
operation, provision, maintenance, and management of the Provider Materials,
and Provider Systems; and
(b)
Customer has and will retain sole control over the
operation, maintenance, and management of, and all access to and use of, the
Customer Systems, and sole responsibility for all access to and use of the
Provider Materials by any Person by or through the Customer Systems or any
other means controlled by Customer or any Authorized User, including any: (i)
information, instructions, or materials provided by any of them to the Services
or Provider; (ii) results obtained from any use of the Services or Provider
Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5
Reservation
of Rights. Nothing in this Agreement grants any right, title, or
interest in or to (including any license under) any Intellectual Property
Rights in or relating to, the Services, Provider Materials, or Third-Party
Materials, whether expressly, by implication, estoppel, or otherwise. All
right, title, and interest in and to the Services, the Provider Materials, and
the Third-Party Materials are and will remain with Provider and the respective
rights holders in the Third-Party Materials.
2.6
Service
Management. Each Party shall, throughout the Term, maintain within its
organization a service manager to serve as such Party’s primary point of
contact for day-to-day communications, consultation, and decision-making
regarding this Agreement. Each service manager shall be responsible for
providing all day-to-day consents and approvals on behalf of such Party under
this Agreement. Each Party shall ensure its service manager has the requisite
organizational authority, skill, experience, and other qualifications to
perform in such capacity. The Parties’ initial service managers are identified in the Order Form and
SOW. Each Party shall use best efforts to maintain the same
service manager in place throughout the Term. If either Party’s service manager
ceases to be employed by such Party or such Party otherwise wishes to replace
its service manager, such Party shall promptly name a new service manager by
written notice to the other Party.
2.7
Changes.
Provider reserves the right, in its sole discretion, to make any changes to the
Services and Provider Materials that it deems necessary or useful to: (a)
maintain or enhance: (i) the quality or delivery of Provider’s services to its
customers; (ii) the competitive strength of or market for Provider’s services;
or (iii) the Services’ cost efficiency or performance; or (b) to comply with
applicable Law. Without limiting the foregoing, either Party may, at any time
during the Term, request in writing changes to the Services. No requested
changes will be effective unless and until memorialized in a written change
order signed by both Parties.
2.8
Subcontractors.
Provider may from time to time in its discretion engage third parties to
perform Services (each, a “Subcontractor”).
2.9
Suspension
or Termination of Services. Provider may, directly or indirectly, and by
use of a Provider Disabling Device or any other lawful means, suspend,
terminate, or otherwise deny Customer’s, any Authorized User’s, or any other
Person’s access to or use of all or any part of the Services or Provider
Materials, without incurring any resulting obligation or liability, if: (a)
Provider receives a judicial or other governmental demand or order, subpoena,
or law enforcement request that expressly or by reasonable implication requires
Provider to do so; or (b) Provider believes, in its good faith and reasonable
discretion, that: (i) Customer or any Authorized User has failed to comply with
any term of this Agreement, or accessed or used the Services beyond the scope
of the rights granted or for a purpose not authorized under this Agreement or
in any manner that does not comply with any instruction or requirement of the
Specifications; (ii) Customer or any Authorized User is, has been, or is likely
to be involved in any fraudulent, misleading, or unlawful activities relating
to or in connection with any of the Services; or (iii) this Agreement expires
or is terminated. This Section 2.8 does not limit any of Provider’s other
rights or remedies, whether at law, in equity, or under this Agreement.
3. Use Restrictions; Service Usage and Data Storage
3.1
Use Restrictions. Customer shall
not, and shall not permit any other Person to, access or use the Services or
Provider Materials except as expressly permitted by this Agreement and, in the
case of Third-Party Materials, the applicable third-party license agreement.
For purposes of clarity and without limiting the generality of the foregoing,
Customer shall not, except as this Agreement expressly permits:
(a)
copy, modify, or create derivative works or
improvements of the Services or Provider Materials;
(b)
rent, lease, lend, sell, sublicense, assign,
distribute, publish, transfer, or otherwise make available any Services or
Provider Materials to any Person, including on or in connection with the
internet or any time-sharing, service bureau, software as a service, cloud, or
other technology or service;
(c)
reverse engineer, disassemble, decompile, decode,
adapt, or otherwise attempt to derive or gain access to the source code of the
Services or Provider Materials, in whole or in part;
(d)
bypass or breach any security device or protection
used by the Services or Provider Materials or access or use the Services or
Provider Materials other than by an Authorized User through the use of his or
her own then valid Access Credentials;
(e)
input, upload, transmit, or otherwise provide to or
through the Services or Provider Systems, any information or materials that are
unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f)
damage, destroy, disrupt, disable, impair,
interfere with, or otherwise impede or harm in any manner the Services,
Provider Systems, or Provider’s provision of services to any third party, in
whole or in part;
(g)
remove, delete, alter, or obscure any trademarks,
Specifications, Documentation, EULA, warranties, or disclaimers, or any
copyright, trademark, patent, or other intellectual property or proprietary
rights notices from any Services or Provider Materials, including any copy
thereof;
(h)
access or use the Services or Provider Materials in
any manner or for any purpose that infringes, misappropriates, or otherwise
violates any Intellectual Property Right or other right of any third party
(including by any unauthorized access to, misappropriation, use, alteration,
destruction, or disclosure of the data of any other Provider customer), or that
violates any applicable Law
(i)
ensure that any users of the Solution properly
acknowledge acceptance of the use of the Solution, and if a minor, their legal
guardian or parent acknowledges and accepts use of the Solution;
(j)
access or use the Services or Provider Materials
for purposes of competitive analysis of the Services or Provider Materials, the
development, provision, or use of a competing software service or product or
any other purpose that is to the Provider’s detriment or commercial
disadvantage;
(k)
access or use the Services or Provider Materials
in, or in association with, the design, construction, maintenance, or operation
of any hazardous environments, systems, or applications, any safety response
systems or other safety-critical applications, or any other use or application
in which the use or failure of the Services could lead to personal injury or
severe physical or property damage; or
(l)
otherwise access or use the Services or Provider
Materials beyond the scope of the authorization granted under this Section 3.1.
3.2
Service Usage. The Order Form and SOW
set forth Fees for designated levels of usage (each a “Service Allocation”),
beginning with the Fees payable by Customer for the levels of usage in effect
as of the Effective Date. If Customer exceeds its Service Allocation for any
relevant period, Customer shall also pay to Provider the applicable excess
usage Fees set forth in the Order Form and SOW.
4. Customer Obligations
4.1
Customer
Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain, and operate in good repair and in accordance with the
Specifications all Customer Systems and Provider Supplied Systems on or through
which the Services are accessed or used; (b) provide Provider Personnel with such
access to Customer’s premises and Customer Systems and Provider Supplied
Systems as is necessary for Provider to perform the Services in accordance with
the Availability Requirement and Specifications; and (c) provide all
cooperation and assistance as Provider may reasonably request to enable
Provider to exercise its rights and perform its obligations under and in
connection with this Agreement.
4.2
Effect
of Customer Failure or Delay. Provider is not responsible or liable for
any delay or failure of performance caused in whole or in part by Customer’s
delay in performing, or failure to perform, any of its obligations under this
Agreement (each, a “Customer Failure”).
4.3
Corrective
Action and Notice. If Customer becomes aware of any actual or threatened
activity prohibited by Section 3.1, Customer shall, and shall cause its
Authorized Users to, immediately: (a) take all reasonable and lawful measures
within their respective control that are necessary to stop the activity or
threatened activity and to mitigate its effects (including, where applicable,
by discontinuing and preventing any unauthorized access to the Services and
Provider Materials and permanently erasing from their systems and destroying
any data to which any of them have gained unauthorized access); and (b) notify
Provider of any such actual or threatened activity.
4.4
Non-Solicitation.
During the Term and for two years after, Customer shall not, and shall not
assist any other Person to, directly or indirectly, recruit or solicit for
employment or engagement as an independent contractor any Person then or within
the prior 12 months employed or engaged by Provider or any Subcontractor. In
the event of a violation of this Section 4.4, Provider will be entitled to seek
an injunction, and/or liquidated damages equal to the compensation paid by
Provider to the applicable employee or contractor during the prior 12 months.
5. Service Levels and Credits
5.1
Service
Levels. Subject to the terms and conditions of this Agreement, Provider
will use commercially reasonable efforts to make the Services Available at
least 90% of the time as measured over the course of each calendar month during
the Term (each such calendar month, a “Service Period”), excluding
unavailability as a result of any of the Exceptions described below in this
Section 5.1 (the “Availability Requirement”). “Service Level Failure”
means a material failure of the Services to meet the Availability Requirement.
“Available” means the Services are available for access and use by
Customer and its Authorized Users over the Internet and operating in material
accordance with the Specifications. For purposes of calculating the
Availability Requirement, the following are “Exceptions” to the
Availability Requirement, and neither the Services will be considered
un-Available nor any Service Level Failure be deemed to occur in connection
with any failure to meet the Availability Requirement or impaired ability of
Customer or its Authorized Users to access or use the Services that is due, in
whole or in part, to any: (a) access to or use of the Services by Customer or
any Authorized User, or using Customer’s or an Authorized User’s Access
Credentials, that does not strictly comply with this Agreement and the
Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s
Internet connectivity; (d) Force Majeure Event; (e) failure, interruption,
outage, or other problem with any software, hardware, system, network,
facility, or other matter not supplied by Provider pursuant to this Agreement;
(f) Scheduled Downtime; or (g) disabling, suspension, or termination of the
Services pursuant to Section 2.8.
5.2
Service
Level Failures and Remedies. In the event of a Service Level Failure,
Provider shall issue a credit to Customer in the amount of 10% of the monthly
Fees for the Services due for the Service Period the Service Level Failure
occurred (each a “Service Credit”), subject to the following:
(a)
Provider has no obligation to issue any Service
Credit unless: (i) Customer reports the Service Failure to Provider immediately
on becoming aware of it; and (ii) requests such Service Credit in writing
within 30 days of the Service Level Failure; and
(b)
in no event will a Service Level Credit for any
Service Period exceed 50% of the total Fees that would be payable for that
Service Period if no Service Level Failure had occurred.
Any
Service Credit payable to Customer under this Agreement will be issued to Customer
in the calendar month following the Service Period in which the Service Level
Failure occurred. This Section 5.2 sets forth Provider’s sole obligation and liability
and Customer’s sole remedy for any Service Level Failure.
5.3
Scheduled
Downtime. Provider will use commercially reasonable efforts to: (a)
schedule downtime for routine maintenance of the Services between the hours of
(2) a.m. and (5) a.m., EST Time; and (b) give Customer at least 24 hours prior
notice of all scheduled outages of the Services (“Scheduled Downtime”).
5.4
Service
Support. The Services include Provider’s standard customer support
services (“Support Services”) in accordance with the Provider service
support schedule then in effect, (the “Support Exhibit”). Provider may
amend the Support Exhibit from time to time in its sole discretion. Customer
may purchase enhanced support services separately at Provider’s then current
rates.
6. Data Backup
. The Services do not replace
the need for Customer to maintain regular data backups or redundant data
archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION,
DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
7. Security
7.1
Information
Security. Provider will employ security measures in accordance with
Provider’s data privacy and security policy.
7.2
Data
Breach Procedures. Provider maintains a data breach plan in accordance
with the criteria set forth in Provider’s data privacy and security policy and
shall implement the procedures required under such data breach plan on the
occurrence of a data breach (as defined in such plan).
7.3
Customer
Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b)
all information, instructions, and materials provided by or on behalf of
Customer or any Authorized User in connection with the Services; (c) Customer’s
information technology infrastructure, including computers, software,
databases, electronic systems (including database management systems), and
networks, whether operated directly by Customer or through the use of
third-party services (“Customer Systems”); (d) the security and use of
Customer’s and its Authorized Users’ Access Credentials; and (e) all access to
and use of the Services and Provider Materials directly or indirectly by or
through the Customer Systems or its or its Authorized Users’ Access
Credentials, with or without Customer’s knowledge or consent, including all
results obtained from, and all conclusions, decisions, and actions based on,
such access or use.
7.4
Access
and Security. Customer shall employ all physical, administrative, and
technical controls, screening, and security procedures and other safeguards
necessary to: (a) securely administer the distribution and use of all Access
Credentials and protect against any unauthorized access to or use of the
Services; and (b) control the content and use of Customer Data, including the
uploading or other provision of Customer Data for Processing by the Services.
8. Fees and Payment
8.1
Fees.
Customer shall pay Provider the fees set forth in the Order Form and
SOW (“Fees”) in accordance with this Section 8.
8.2
Taxes.
All Fees and other amounts payable by Customer under this Agreement are
exclusive of taxes and similar assessments. Without limiting the foregoing,
Customer is responsible for all sales, use, and excise taxes, and any other
similar taxes, duties, and charges of any kind imposed by any federal, state,
or local governmental or regulatory authority on any amounts payable by
Customer hereunder, other than any taxes imposed on Provider’s income.
8.3
Payment.
Customer shall pay all Fees and Reimbursable Expenses within 30 days after the
date of the invoice therefor. Customer shall make payments to the address or
account specified in the invoice.
8.4
Late
Payment. If Customer fails to make any payment when due then, in
addition to all other remedies that may be available:
(a)
Provider may charge interest on the past due amount
at the rate of 1.5% per month calculated daily and compounded monthly or, if
lower, the highest rate permitted under applicable Law;
(b)
Customer shall reimburse Provider for all
reasonable costs incurred by Provider in collecting any late payments or
interest, including attorneys’ fees, court costs, and collection agency fees;
and
(c)
if such failure continues for 15 days following
written notice thereof, Provider may suspend performance of the Services until
all past due amounts and interest thereon have been paid, without incurring any
obligation or liability to Customer or any other Person by reason of such
suspension.
8.5
No Deductions or
Setoffs. All amounts payable to Provider under this Agreement shall be
paid by Customer to Provider in full without any setoff, recoupment,
counterclaim, deduction, debit, or withholding for any reason (other than
Service Credits issued pursuant to Section 5.2 or any deduction or withholding
of tax as may be required by applicable Law).
8.6
Fee
Increases. Provider may increase Fees by providing written notice to
Customer at least 60 calendar days prior to the commencement of any Renewal
Term, and the
Order Form and SOW will be deemed amended accordingly.
8.7
Reimbursable
Expenses. Customer shall reimburse Provider for out-of-pocket expenses
incurred by Provider in connection with performing the Services (“Reimbursable
Expenses”).
9. Confidentiality
9.1
Confidential
Information. In connection with this Agreement each Party (as the “Disclosing
Party”) may disclose or make available Confidential Information to the
other Party (as the “Receiving Party”). Subject to Section 9.2, “Confidential
Information” means information in any form or medium (whether oral,
written, electronic, or other) that the Disclosing Party considers confidential
or proprietary, including information consisting of or relating to the
Disclosing Party’s technology, trade secrets, know-how, business operations,
plans, strategies, customers, and pricing, and information with respect to
which the Disclosing Party has contractual or other confidentiality
obligations, in each case whether or not marked, designated, or otherwise
identified as “confidential”.
9.2
Exclusions.
Confidential Information does not include information that: (a) was rightfully
known to the Receiving Party without restriction on use or disclosure prior to
such information’s being disclosed or made available to the Receiving Party in
connection with this Agreement; (b) was or becomes generally known by the
public other than by the Receiving Party’s or any of its Representatives’
noncompliance with this Agreement; (c) was or is received by the Receiving
Party on a non-confidential basis from a third party that, 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 (d) was or is independently
developed by the Receiving Party without reference to or use of any Confidential
Information.
9.3
Protection
of Confidential Information. As a condition to being provided with any
disclosure of or access to Confidential Information, the Receiving Party shall:
(a)
not access or use Confidential Information other
than as necessary to exercise its rights or perform its obligations under and
in accordance with this Agreement;
(b)
except as may be permitted by and subject to its
compliance with Section 9.4, not disclose or permit access to Confidential
Information other than to its Representatives who: (i) need to know such
Confidential Information for purposes of the Receiving Party’s exercise of its
rights or performance of its obligations under and in accordance with this
Agreement; (ii) have been informed of the confidential nature of the
Confidential Information and the Receiving Party’s obligations under this
Section 9.3; and (iii) are bound by written confidentiality and restricted use
obligations at least as protective of the Confidential Information as the terms
set forth in this Section 9;
(c)
safeguard the Confidential Information from
unauthorized use, access, or disclosure using at least the degree of care it
uses to protect its most sensitive information and in no event less than a reasonable
degree of care;
(d)
promptly notify the Disclosing Party of any
unauthorized use or disclosure of Confidential Information and take all
reasonable steps/use its best efforts/cooperate with Disclosing Party to
prevent further unauthorized use or disclosure; and
(e)
ensure its Representatives’ compliance with, and be
responsible and liable for any of its Representatives’ non-compliance with, the
terms of this Section 9.
(f)
Notwithstanding any other provisions of this
Agreement, the Receiving Party’s obligations under this Section 9 with respect
to any Confidential Information that constitutes a trade secret under any
applicable Law will continue until such time, if ever, as such Confidential
Information ceases to qualify for trade secret protection under one or more
such applicable Laws other than as a result of any act or omission of the
Receiving Party or any of its Representatives.
9.4
Compelled
Disclosures. If the Receiving Party or any of its Representatives is
compelled by applicable Law to disclose any Confidential Information then, to
the extent permitted by applicable Law, the Receiving Party shall: (a)
promptly, and prior to such disclosure, notify the Disclosing Party in writing
of such requirement so that the Disclosing Party can seek a protective order or
other remedy or waive its rights under Section 9.3; and (b) provide reasonable
assistance to the Disclosing Party, at the Disclosing Party’s sole cost and
expense, in opposing such disclosure or seeking a protective order or other
limitations on disclosure. If the Disclosing Party waives compliance or, after
providing the notice and assistance required under this Section 9.4, the
Receiving Party remains required by Law to disclose any Confidential
Information, the Receiving Party shall disclose only that portion of the
Confidential Information that, on the advice of the Receiving Party’s legal
counsel, the Receiving Party is legally required to disclose and, on the
Disclosing Party’s request, shall use commercially reasonable efforts to obtain
assurances from the applicable court or other presiding authority that such
Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights
10.1
Provider
Materials. All right, title, and interest in and to the Provider
Materials, including all Intellectual Property Rights therein, are and will
remain with Provider and, with respect to Third-Party Materials, the applicable
third-party providers own all right, title, and interest, including all
Intellectual Property Rights, in and to the Third-Party Materials. Customer has
no right, license, or authorization with respect to any of the Provider
Materials except as expressly set forth in Section 2.1 or the applicable
third-party license, in each case subject to Section 3.1. All other rights in
and to the Provider Materials are expressly reserved by Provider. In
furtherance of the foregoing, Customer hereby unconditionally and irrevocably
grants to Provider an assignment of all right, title, and interest in and to
the Resultant Data, including all Intellectual Property Rights relating
thereto.
10.2
Customer
Data. As between Customer and Provider, Customer is and will remain the
sole and exclusive owner of all right, title, and interest in and to all
Customer Data, including all Intellectual Property Rights relating thereto,
subject to the rights and permissions granted in Section 10.3, provided,
however, that any data of Customer that is incorporated into a data set created
by Provider shall become the property of Provider.
10.3
Consent
to Use Customer Data. Customer hereby irrevocably grants all such rights
and permissions in or relating to Customer Data as are necessary or useful to
Provider, its Subcontractors, and the Provider Personnel to enforce this
Agreement and exercise Provider’s, its Subcontractors’, and the Provider
Personnel’s rights and perform Provider’s, its Subcontractors’, and the
Provider Personnel’s obligations hereunder.
11. Representations and Warranties
11.1
Mutual
Representations and Warranties. Each Party represents and warrants to
the other Party that:
(a)
it is duly organized, validly existing, and in good
standing as a corporation or other entity under the Laws of the jurisdiction of
its incorporation or other organization;
(b)
it has the full right, power, and authority to
enter into and perform its obligations and grant the rights, licenses,
consents, and authorizations it grants or is required to grant under this
Agreement;
(c)
the execution of this Agreement by its
representative whose signature is set forth at the end of this Agreement has
been duly authorized by all necessary corporate or organizational action of
such Party; and
(d)
when executed and delivered by both Parties, this
Agreement will constitute the legal, valid, and binding obligation of such
Party, enforceable against such Party in accordance with its terms.
11.2
Additional
Provider Representations, Warranties, and Covenants. Provider
represents, warrants, and covenants to Customer that Provider will perform the
Services using personnel of required skill, experience, and qualifications and
in a professional and workmanlike manner in accordance with generally
recognized industry standards for similar services and will devote adequate
resources to meet its obligations under this Agreement.
11.3
Additional
Customer Representations, Warranties, and Covenants. Customer
represents, warrants, and covenants to Provider that Customer owns or otherwise
has and will have the necessary rights and consents in and relating to the
Customer Data so that, as received by Provider and Processed in accordance with
this Agreement, they do not and will not infringe, misappropriate, or otherwise
violate any Intellectual Property Rights, or any privacy or other rights of any
third party or violate any applicable Law.
11.4
DISCLAIMER
OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 2.1(c), 11.1 AND
11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE
FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER
MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S
OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY
INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER
SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR
FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR
WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN
CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12. Indemnification
12.1
Provider
Indemnification. Provider shall indemnify, defend, and hold harmless
Customer from and against any and all Losses incurred by Customer resulting
from any Action by a third party (other than an Affiliate of Customer) that
Customer’s use of the Services (excluding Customer Data and Third-Party
Materials) in accordance with this Agreement (including the Specifications)
infringes or misappropriates such third party’s US Intellectual Property
Rights. The foregoing obligation does not apply to the extent that the alleged
infringement arises from:
(a)
Third-Party Materials or Customer Data;
(b)
access to or use of the Provider Materials in
combination with any hardware, system, software, network, or other materials or
service not provided by Provider or specified for Customer’s use in the
Documentation;
(c)
modification of the Provider Materials other than:
(i) by or on behalf of Provider; or (ii) with Provider’s written approval in
accordance with Provider’s written specification;
(d)
failure to timely implement any modifications,
upgrades, replacements, or enhancements made available to Customer by or on
behalf of Provider; or
(e)
act, omission, or other matter described in Section
12.2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not
the same results in any Action against or Losses by any Provider Indemnitee.
12.2
Customer
Indemnification. Customer shall indemnify, defend, and hold harmless
Provider and its Subcontractors and Affiliates, and each of its and their
respective officers, directors, employees, agents, successors, and assigns
(each, a “Provider Indemnitee”) from and against any and all Losses
incurred by such Provider Indemnitee resulting from any Action by a third party
(other than an Affiliate of a Provider Indemnitee) that arise out of or result
from, or are alleged to arise out of or result from:
(a)
Customer Data, including any Processing of Customer
Data by or on behalf of Provider in accordance with this Agreement;
(b)
any other materials or information (including any
documents, data, specifications, software, content, or technology) provided by
or on behalf of Customer or any Authorized User, including Provider’s
compliance with any specifications or directions provided by or on behalf of
Customer or any Authorized User to the extent prepared without any contribution
by Provider;
(c)
any claim of any person that the use of Provider’s
Services by Customer violated their privacy rights or any other similar rights;
(d)
any claim of any person resulting from an improper
granting or denial of access by use of Provider’s Solution;
(e)
allegation of facts that, if true, would constitute
Customer’s breach of any of its representations, warranties, covenants, or
obligations under this Agreement; or
(f)
negligence or more culpable act or omission
(including recklessness or willful misconduct) by Customer, any Authorized
User, or any third party on behalf of Customer or any Authorized User, in
connection with this Agreement.
12.3
Indemnification
Procedure. Each Party shall promptly notify the other Party in writing
of any Action for which such Party believes it is entitled to be indemnified
pursuant to Section 12.1 or Section 12.2, as the case may be. The Party seeking
indemnification (the “Indemnitee”) shall cooperate with the other Party
(the “Indemnitor”) at the Indemnitor’s sole cost and expense. The
Indemnitor shall promptly assume control of the defense and shall employ
counsel reasonably acceptable to the Indemnitee to handle and defend the same,
at the Indemnitor’s sole cost and expense. The Indemnitee may participate in
and observe the proceedings at its own cost and expense with counsel of its own
choosing. The Indemnitor shall not settle any Action without the Indemnitee’s
prior written consent, which shall not be unreasonably withheld or delayed. If
the Indemnitor fails or refuses to assume control of the defense of such
Action, the Indemnitee shall have the right, but no obligation, to defend
against such Action, including settling such Action after giving notice to the
Indemnitor, in each case in such manner and on such terms as the Indemnitee may
deem appropriate. The Indemnitee’s failure to perform any obligations under
this Section 12.3 will not relieve the Indemnitor of its obligations under this
Section 12, except to the extent that the Indemnitor can demonstrate that it
has been prejudiced as a result of such failure.
12.4
Mitigation.
If any of the Services or Provider Materials are, or in Provider’s opinion are
likely to be, claimed to infringe, misappropriate, or otherwise violate any
third-party Intellectual Property Right, or if Customer’s or any Authorized
User’s use of the Services or Provider Materials is enjoined or threatened to
be enjoined, Provider may, at its option and sole cost and expense:
(a)
obtain the right for Customer to continue to use
the Services and Provider Materials materially as contemplated by this
Agreement;
(b)
modify or replace the Services and Provider
Materials, in whole or in part, to seek to make the Services and Provider
Materials (as so modified or replaced) non-infringing, while providing
materially equivalent features and functionality, in which case such
modifications or replacements will constitute Services and Provider Materials,
as applicable, under this Agreement; or
(c)
by written notice to Customer, terminate this
Agreement with respect to all or part of the Services and Provider Materials,
and require Customer to immediately cease any use of the Services and Provider
Materials or any specified part or feature thereof.
12.5
Sole Remedy. THIS SECTION 12 SETS FORTH
CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS
OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR
OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability
13.1
EXCLUSION
OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE
PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR
ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN
VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE
SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS
PURSUANT TO SECTION 5.2; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR
BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES;
(e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH
PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH
LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE
OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2
CAP ON MONETARY
LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT
WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE
PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER
ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWO TIMES THE
TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY
EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3
SPECIFIC
LIMITATION OF LIABILITY WITH REGARDS TO ACCESS CONTROL. IN NO EVENT SHALL
PROVIDER BE LIABLE TO CUSTOMER FOR ANY MISTAKE IN GRANTING OF ACCESS, WHETHER
AN IMPROPER DENIAL OR GRANTING OF ACCESS, THAT IS CAUSED BY ANY FAILURE OF
PROVIDER’S SYSTEM TO PROPERLY RECOGNIZE ANY USER OR THIRD PARTY.
14. Term and Termination
14.1
Term.
The initial term of this Agreement commences as of the Effective Date and,
unless terminated earlier pursuant any of the Agreement’s express provisions,
will continue in effect for the period set forth in the Order Form and
SOW (the “Term”). The Agreement will continue on a
month-to-month basis thereafter.
14.2
Termination.
In addition to any other express termination right set forth elsewhere in this
Agreement:
(a)
Provider may terminate this Agreement, effective on
written notice to Customer, if Customer: (i) fails to pay any amount when due
hereunder, and such failure continues more than 15 days after Provider’s
delivery of written notice thereof; or (ii) breaches any of its obligations
under Section 3.1, Section 7.3, or Section 9;
(b)
Either party may cancel this Agreement with 30 days’ written notice to the other party,
subject to the terms and limitations set forth in the TERM AND TERMINATION paragraph of this Agreement.
Advanced Entry may also immediately cancel this Agreement and immediately suspend all processing for Merchant
without providing advance written notice to Merchant: (1) upon the request of any regulatory agency, regardless of the reason for the request;
(2) if Advanced Entry or any regulatory agency believes that Merchant has breached this Agreement,
has breached any representations and warranties made in this Agreement,
is violating or has previously violated any applicable Rules or Regulations and/or has initiated any unauthorized Entries.
Advanced Entry’s obligation to provide services under the Agreement shall cease,
and any unpaid amounts due and owing by Merchant shall become immediately due and payable.
Payment for any services rendered or any other obligation or liability owing at the time of termination
shall not be affected by termination of this Agreement.
(c)
either Party may terminate this Agreement,
effective immediately upon written notice to the other Party, if the other
Party: (i) becomes insolvent or is generally unable to pay, or fails to pay,
its debts as they become due; (ii) files, or has filed against it, a petition for
voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily
or involuntarily, to any proceeding under any domestic or foreign bankruptcy or
insolvency Law; (iii) makes or seeks to make a general assignment for the
benefit of its creditors; or (iv) applies for or has appointed a receiver,
trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its
property or business.
14.3
Effect
of Termination or Expiration. Upon any expiration or termination of this
Agreement, except as expressly otherwise provided in this Agreement:
(a)
all rights, licenses, consents, and authorizations
granted by either Party to the other hereunder will immediately terminate;
(b)
Provider shall immediately cease all use of any
Customer Data or Customer’s Confidential Information and (i) promptly return to
Customer, or destroy, all documents and tangible materials that primarily
contain Customer Data or Customer’s Confidential Information, however, not
including any anonymized data sets incorporated into Provider’s databases; and
(ii) permanently erase all Customer Data and Customer’s Confidential
Information from all systems Provider directly, provided that, for clarity,
Provider’s obligations under this Section 14.4(b) do not apply to any Resultant
Data. For the sake of clarity, Provider has no obligation to store any
Customer Data for more than 30 days after the date of Termination;
(c)
Customer shall immediately cease all use of any
Services or Provider Materials and (i) promptly return to Provider, or at
Provider’s written request destroy, all documents and tangible materials
containing, reflecting, incorporating, or based on any Provider Materials or
Provider’s Confidential Information; (ii) permanently erase all Provider
Materials and Provider’s Confidential Information from all systems Customer
directly or indirectly controls; and (iii) certify to Provider in a signed
written instrument that it has complied with the requirements of this Section
14.4(c)];
(d)
notwithstanding anything to the contrary in this
Agreement, with respect to information and materials then in its possession or
control: (i) the Receiving Party may retain the Disclosing Party’s Confidential
Information; (ii) Provider may retain Customer Data; (iii) Customer may retain
Provider Materials; in its then current state and solely to the extent and for
so long as required by applicable Law; (iv) Provider may also retain Customer
Data in its backups, archives, and disaster recovery systems until such
Customer Data is deleted in the ordinary course; and (v) all information and
materials described in this Section 14.4(d) will remain subject to all
confidentiality, security, and other applicable requirements of this Agreement;
(e)
Provider may disable all Customer and Authorized
User access to the Provider Materials;
(f)
if Customer terminates this Agreement pursuant to
Section 14.3(b), Customer will be relieved of any
obligation to pay any Fees attributable to the period after the effective date
of such termination;
(g)
if Provider
terminates this Agreement pursuant to Section 14.3(a) or Section 14.3(b), all
Fees that would have become payable had the Agreement remained in effect until
expiration of the Term will become immediately due and payable, and Customer
shall pay such Fees, together with all previously-accrued but not yet paid Fees
and Reimbursable Expenses, on receipt of Provider’s invoice therefor.
14.4
Surviving
Terms. The provisions set forth in the following sections, and any other
right or obligation of the Parties in this Agreement that, by its nature,
should survive termination or expiration of this Agreement, will survive any
expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4,
Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.
15. Miscellaneous
15.1
Further
Assurances. On a Party’s reasonable request, the other Party shall, at
the requesting Party’s sole cost and expense, execute and deliver all such
documents and instruments, and take all such further actions, as may be
necessary to give full effect to this Agreement.
15.2
Relationship
of the Parties. The relationship between the Parties is that of
independent contractors. Nothing contained in this Agreement shall be construed
as creating any agency, partnership, joint venture, or other form of joint
enterprise, employment, or fiduciary relationship between the Parties, and
neither Party shall have authority to contract for or bind the other Party in
any manner whatsoever.
15.3
Public
Announcements. Neither Party shall issue or release any announcement,
statement, press release, or other publicity or marketing materials relating to
this Agreement or, unless expressly permitted under this Agreement, otherwise
use the other Party’s trademarks, service marks, trade names, logos, domain
names, or other indicia of source, association, or sponsorship, in each case,
without the prior written consent of the other Party, which consent shall not
be unreasonably withheld, provided, however, that Provider may, without
Customer’s consent, include Customer’s name and other indicia in its lists of
Provider’s current or former customers of Provider in promotional and marketing
materials.
15.4
Notices.
Any notice, request, consent, claim, demand, waiver, or other communications
under this Agreement have legal effect only if in writing and addressed to a
Party as follows (or to such other address or such other person that such Party
may designate from time to time in accordance with this Section 15.4):
If to Provider:
|
Advanced Entry LLC
5308 13th Ave, Suite 167, Brooklyn NY 11219.
Email: info@advancedentry.com
Attention: Manager
|
If to Customer:
|
The address in the Order Form
and SOW
|
Notices sent in accordance with this Section 15.4 will be deemed
effectively given: (a) when received, if delivered by hand, with signed
confirmation of receipt; (b) when received, if sent by a nationally recognized
overnight courier, signature required; (c) when sent, if by facsimile or email,
(in each case, with confirmation of transmission), if sent during the
addressee’s normal business hours, and on the next business day, if sent after
the addressee’s normal business hours; and (d) on the 3rd day after the date
mailed by certified or registered mail, return receipt requested, postage
prepaid.
15.5
Interpretation.
For purposes of this Agreement: (a) the words “include,” “includes,” and
“including” are deemed to be followed by the words “without limitation”; (b)
the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,”
“hereto,” and “hereunder” refer to this Agreement as a whole; (d) words
denoting the singular have a comparable meaning when used in the plural, and
vice-versa; and (e) words denoting any gender include all genders. Unless the
context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the
sections of, and exhibits, schedules, attachments, and appendices attached to,
this Agreement; (y) to an agreement, instrument, or other document means such
agreement, instrument, or other document as amended, supplemented, and modified
from time to time to the extent permitted by the provisions thereof; and (z) to
a statute means such statute as amended from time to time and includes any
successor legislation thereto and any regulations promulgated thereunder. The
Parties intend this Agreement to be construed without regard to any presumption
or rule requiring construction or interpretation against the Party drafting an
instrument or causing any instrument to be drafted. The exhibits, schedules,
attachments, and appendices referred to herein are an integral part of this
Agreement to the same extent as if they were set forth verbatim herein.
15.6
Headings.
The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
15.7
Entire
Agreement. This Agreement, together with any other documents
incorporated herein by reference, constitutes the sole and entire agreement of
the Parties with respect to the subject matter of this Agreement and supersedes
all prior and contemporaneous understandings, agreements, representations, and
warranties, both written and oral, with respect to such subject matter. In the
event of any inconsistency between the statements made in the body of this
Agreement, the related exhibits, schedules, attachments, and appendices, the
following order of precedence governs: (a) first, this Agreement, excluding its
exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules,
attachments, and appendices to this Agreement as of the Effective Date; and (c)
third, any other documents incorporated herein by reference.
15.8
Assignment.
Customer shall not assign or otherwise transfer any of its rights, or delegate
or otherwise transfer any of its obligations or performance under this
Agreement, in each case whether voluntarily, involuntarily, by operation of
law, or otherwise, without Provider’s prior written consent, which consent
shall not be unreasonably withheld, conditioned, or delayed. No assignment,
delegation, or transfer will relieve Customer of any of its obligations or
performance under this Agreement. Any purported assignment, delegation, or
transfer in violation of this Section 15.8 is void. This Agreement is binding
upon and inures to the benefit of the Parties hereto and their respective
successors and permitted assigns.
15.9
Force Majeure.
(a)
No
Breach or Default. In no event will Provider be liable or responsible to
Customer, or be deemed to have defaulted under or breached this Agreement, for
any failure or delay in fulfilling or performing any term of this Agreement,
when and to the extent such failure or delay is caused by any circumstances
beyond Provider’s reasonable control (a “Force Majeure Event”),
including acts of God, flood, fire, earthquake or explosion, war, terrorism,
invasion, pandemic, riot or other civil unrest, embargoes or blockades in
effect on or after the date of this Agreement, national or regional emergency,
strikes, labor stoppages or slowdowns or other industrial disturbances, passage
of Law or any action taken by a governmental or public authority, including
imposing an embargo, export or import restriction, quota, or other restriction
or prohibition or any complete or partial government shutdown, or national or
regional shortage of adequate power or telecommunications or transportation.
Either Party may terminate this Agreement if a Force Majeure Event continues
substantially uninterrupted for a period of 45 days or more, if the Force Majeure
Event prevents Provider from substantially providing the Services.
(b)
Affected
Party Obligations. In the event of any failure or delay caused by a
Force Majeure Event, Provider shall give prompt written notice to Customer
stating the period of time the occurrence is expected to continue and use
commercially reasonable efforts to end the failure or delay and minimize the
effects of such Force Majeure Event.
15.10 No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto and their respective
successors and permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or equitable right,
benefit, or remedy of any nature whatsoever under or by reason of this
Agreement.
15.11 Amendment and Modification; Waiver.
No amendment to or modification of this Agreement is effective unless it is in
writing, identified as an amendment to this Agreement and signed by an
authorized representative of each Party. No waiver by any Party of any of the provisions
hereof shall be effective unless explicitly set forth in writing and signed by
the Party so waiving. Except as otherwise set forth in this Agreement, no
failure to exercise, or delay in exercising, any rights, remedy, power, or
privilege arising from this Agreement will operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power,
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege.
15.12 Severability. If any term or
provision of this Agreement is invalid, illegal, or unenforceable in any
jurisdiction, such invalidity, illegality, or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon such
determination that any term or other provision is invalid, illegal, or
unenforceable, the Parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest
extent possible.
15.13 Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal
laws of the State of New York without giving effect to any choice or conflict
of law provision or rule that would require or permit the application of the
laws of any jurisdiction other than those of the State of New York. Any legal
suit, action, or proceeding arising out of or related to this Agreement or the
licenses granted hereunder will be instituted exclusively in the federal courts
of the United States or the courts of the State of New York in each case
located in the city of Brooklyn and County of Kings, and each Party irrevocably
submits to the exclusive jurisdiction of such courts in any such suit, action,
or proceeding. Service of process, summons, notice, or other document by mail
to such Party’s address set forth herein shall be effective service of process
for any suit, action, or other proceeding brought in any such court.
15.14 Waiver of Jury Trial. Each
Party irrevocably and unconditionally waives any right it may have to a trial
by jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated hereby.
15.15 Equitable Relief. Customer
acknowledges and agrees that a breach or threatened breach by Customer of any
of its obligations under Section 9, Section 3.1, Section 4.3, or Section 7.3,
would cause Provider irreparable harm for which monetary damages would not be
an adequate remedy and that, in the event of such breach or threatened breach,
Provider will be entitled to 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.
15.16 Attorneys’ Fees. In the
event that any action, suit, or other legal or administrative proceeding is
instituted or commenced by either Party against the other Party arising out of
or related to this Agreement, the prevailing Party is entitled to recover its
actual attorneys’ fees and court costs from the non-prevailing Party.
15.17 Counterparts. This Agreement
may be executed in counterparts, each of which is deemed an original, but all
of which together are deemed to be one and the same agreement. A signed copy of
this Agreement delivered by facsimile, email, or other means of electronic
transmission is deemed to have the same legal effect as delivery of an original
signed copy of this Agreement.
15.18
Arbitration. Any controversy or
claim arising out of or relating to this contract, or the breach thereof, shall
be settled by arbitration administered by the American Arbitration Association
in accordance with its Commercial Arbitration Rules and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
The place of arbitration shall be Brooklyn, NY,
except that telephonic hearings are allowed. The arbitration shall be governed
by the laws of the State of New York. Hearings will take place pursuant to the
standard procedures of the Commercial Arbitration Rules that contemplate in
person hearings. Time is of the essence for any arbitration under this
agreement and arbitration hearings shall take place within 90 days of filing
and awards rendered within 120 days. Arbitrator(s) shall agree to these limits
prior to accepting appointment. Each party shall bear its own costs and
expenses and an equal share of the arbitrators' and administrative fees of
arbitration; provided, however, that in any case where Provider seeks to
recover Fees unpaid, Customer shall bear the costs of such litigation,
arbitration, and attorney fees. Except as may be required by law, neither a Party nor an
arbitrator may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties. The Parties agree that
failure or refusal of a party to pay its required share of the deposits for
arbitrator compensation or administrative charges shall constitute a waiver by
that party to present evidence or cross-examine witness. In such event, the
other party shall be required to present evidence and legal argument as the
arbitrator(s) may require for the making of an award. Such waiver shall not
allow for a default judgment against the non-paying party in the absence of
evidence presented as provided for above.