This Master Subscription Agreement (the “Agreement”) is entered into by and between TrustLayer, Inc. (“TrustLayer”) and the counterparty identified as the customer in the applicable Order Form (“Client”). By signing an Order Form or Statement of Work, each party agrees to the terms of this Agreement. This Agreement shall be effective on the date the Order Form or Statement of Work has been fully executed by the parties (the “Effective Date”).
The Company and Client may be referred to in this Agreement individually as a “Party” and together as the “Parties.”
WHEREAS, the Company has developed a certain proprietary software-as-a-service (SaaS) product known as “TrustLayer” (collectively with all intellectual property rights therein, as the same may be supplemented, modified, updated or enhanced from time to time, the “Software Platform”);
WHEREAS, the Client may subscribe to and use the Software Platform and additional services provided by TrustLayer, such as Digital Proof of Insurance Network (“TL Pulse”) and managed services as indicated in an applicable Statement of Work (defined below).
NOW, THEREFORE, the parties hereto agree as follows:
1.SOFTWARE; SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS.
1.1. Software Activation and Use; License. The Company shall provide to Client access to the Services described in one (1) or more statements of work (each a “Statement of Work”). Each Statement of Work is incorporated herein by reference. Client and any third-party users (“Client Users”), approved in a SOW, shall access the Software Platform by means of a client account accessed via a unique client log-in and password for each Client User (such account, the “Client Account”).
1.2. Updates. The Company reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Software Platform. The Company shall provide Client with reasonable release notice in connection with material updates or changes to the Services.
1.3. New Services. The Company may develop and market new or different products or services, which use part or all of the Services, and which perform all or a part of the functions performed by the Services. Nothing contained in this Agreement shall give the Client any rights with respect to any such new or different products or services unless specified in a Statement of Work.
1.4.1. Company agrees that it has established or shall establish and perform security procedures with respect to Client Data provided to Company by Client, including provided by any Client Users, under the terms of this Agreement in accordance with accepted industry practices or processes, practices and procedures that shall be no less comprehensive than those set forth in the security policies developed and enhanced by Company from time to time to maintain currency with technology security practices.
1.4.2. The Company shall, within seventy-two (72) hours of discovery, notify Client of any Data Security Breach. As soon as practicable thereafter, Company shall provide Client full and complete details of the Data Security Breach. The Company will cooperate with Client in a commercially reasonable manner to investigate the incident and will exert commercially reasonable efforts to (i) terminate the Data Security Breach and (ii) prevent the reoccurrence thereof. The Company shall provide commercially reasonable assistance to Client to regain possession of and terminate the Data Security Breach. Company shall assist and cooperate with Client concerning any disclosures to affected Client Users, other parties, government or regulatory bodies, and other remedial measures as required under any applicable privacy or data protection law. If the Data Security Breach was caused, in whole or in part, by the Company’s gross negligence or breach of this Agreement, Company shall indemnify and hold Client harmless from and against any and all Liabilities (as defined below under Section 5.1) incurred by Client in connection with such Data Security Breach. For purposes of this Agreement, “Data Security Breach” shall mean an unauthorized act or occurrence that bypasses or contravenes security policies, practices, or procedures and which could reasonably be expected to have a material adverse impact on the Client Data.
1.4.3. Except as provided in Section 1.4.2, the Company shall not be liable for any damage or loss related to the accuracy, security and/or maintenance of any data uploaded by the Client or a Client User to the Software Platform or otherwise provided by the Client or Client User to the Company (“Client Data”).
1.5. Company Personnel; Limitations. Company shall provide qualified personnel, each of whose names, positions, billing rates, respective levels of experience and relevant licenses may be listed in the Statements of Work or Change Orders (the “Personnel”) to complete the Services specified in the Statements of Work. Certain key Personnel may be specified in a Statement of Work or Change Order as “Key Personnel.”
1.5.1. Neither the Company nor any employees, contractors or Personnel of the Company (including those individuals giving any initial or on-going training to Client or Client Users) is being engaged to make recommendations or furnish any advice based on any Client Data. Neither the Company nor any employees, contractors or Personnel of the Company (including those individuals giving any initial or on-going training to Client or Client Users) shall have any liability or obligation to Client, Client Users or any third-party’s reliance upon, application or use of any information, data, data extraction or any reports furnished or actions taken as a result of Client’s use or access to the Services.
1.6. Additional Covenants. Client and Client User shall comply with all of the terms and conditions of this Agreement, and the terms and conditions of the Software Platform as in effect from time to time (and the Company shall have the right to change such terms and conditions at its sole discretion, with notice to Client), which terms and conditions are hereby incorporated herein by reference thereto.
1.7. Third Party Services.
1.7.1. The Company may make available to Client certain third-party products or services for use in connection with the Services ("Third Party Services"), including but not limited to Third Party Services that can integrate with the Services via APIs. Client understands and agrees that Client’s use of those Third Party Services may be subject to additional terms and conditions and policies that are specific to such Third Party Services, and that Client shall be bound by such terms and conditions and policies if Client elects to use such Third Party Services. The Company does not endorse any Third Party Service it makes available, and makes no representations or warranties with respect to any Third Party Services, whether express or implied. Client is solely responsible for determining the suitability of any Third Party Services that Client elects to use in connection with the Software Platform. Any and all use of such Third Party Services shall be at Client’s sole risk.
1.7.2. Client acknowledges that the Company’s Third Party Services features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts its use. If there is a dispute between Client and any third party, including a provider of Third Party Services, Client understands and agrees that the Company is under no obligation to become involved in such dispute.
1.8. Electronic Signature.
1.8.1. The functionality of the Software Platform may include facilitating and processing the execution of electronic documents between the Client and vendors or third-party service providers. Nothing in this Agreement may be construed to make the Company a party to any electronic document processed through the Software Platform, and the Company makes no representations or warranties regarding the transactions contemplated by any electronic document processed by the Software Platform.
1.8.2. Certain types of agreements and documents may be excepted from electronic signature laws or may have special regulations that are applicable to them. The Company is not responsible or liable to determine whether any particular electronic Document is subject to any additional regulations or laws or any exception to applicable electronic signature laws. Client is solely responsible for ensuring its compliance will all such laws and regulations.
1.8.3. The Company is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes.
1.9.1. Only if approved in the SOW, the Client may subscribe to market and demonstrate the Software Platform and distribute and/or resell access to the Services to Client Users described in one (1) or more Statements of Work. Should the Company subscribe to this service, the Company grants Client a nonexclusive, non-transferrable, non-sublicensable, license to market and demonstrate the Software Platform and distribute and/or resell access to the Services to Client Users, subject to the terms and limitations set forth in the applicable Statement of Work. Nothing in this Agreement shall be construed as limiting Provider’s marketing or distribution activities or its appointment of other resellers or agents of any kind. Client will inform Client Users that Client Users’ access to and use of the Services is subject to their agreement to the terms and conditions of the Software Platform, which may be amended by Company from time to time and Client User’s access to the Services will terminate upon the termination of this Agreement unless such Client User enters into an agreement with the Company providing for continued access to the Services. Client will make no Warranty to Client Users with respect to the Services. Company will have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to a Client User by Client in connection with the Services.
2. Managed services
2.1. Scope of managed services. The Client may subscribe to certain managed services described in one (1) or more Statements of Work. Managed services may include any implementation, conversion, training, consulting, management, data extraction or other managed services provided by the Company to Client in connection with the Software Platform or Client’s compliance needs, pursuant to this Agreement or any Statement of Work. Except as the Parties may expressly agree in writing, the managed services set forth in such Statement of Work shall be governed in all respects by the terms and conditions of this Agreement. All managed services to be provided will be described and documented in a Statement of Work. Company may engage third-party consultants or subcontractors to assist the provision of managed services to Client.
2.2. Changes in Scope. Subject to any additional requirements described in an applicable Statement of Work hereunder, either Party may propose changes to the scope of the Statement of Work by delivery of a written notification to the other Party describing the desired changes (“Change Request”). If the Company proposes the Change Request, then the Company shall provide with the Change Request an estimate of the effect on cost and time of delivery associated with the Change Request. If Client proposes a Change Request, then the Company shall promptly provide Client an estimate of the effect on the cost and time of delivery associated with the Change Request. Either Party shall have the right to reject or approve, in its sole reasonable discretion, any Change Request proposed by the other Party. No Statement of Work will be modified or changed until the Parties execute a written change order or amendment to the applicable Statement of Work.
2.3. Performance Schedule; Delays. Any delay in the performance schedule caused by Client may impact the fee payment as described in the applicable Statement of Work or Order Form. If any delays in the Company’s performance occur as a result of a material failure to cooperate or untimely performance by Client, the Company shall not incur any liability for its non-performance under the applicable Statement of Work as a result of such delay.
3. FEES AND EXPENSES.
3.1. Fees. Client will pay all fees or charges (“Fees”) pursuant to the Statement of Work. Fees are a factor of subscription volume, data volume, active Client Users and other commercial factors. Unless otherwise set forth in a Statement of Work, amounts are due and payable within 30 days after the date of each applicable invoice; multiple invoices for the Services may be issued, and each will be payable according to the terms set forth herein. Unless otherwise specified herein or in a Statement of Work, (i) Fees are quoted and payable in United States dollars, (ii) Fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancelable and Fees paid are non-refundable and (iv) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on a Statement of Work. If an Order Schedule specifies any capacity or other limits for the applicable Service, Client agrees not to exceed such limit(s); otherwise, the Company will charge for, and Client agrees to pay for such additional access.
3.2. Taxes. All Fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on the Company’s income. Client will pay all Fees free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Client’s responsibility, and, upon the Company’s request, Client will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.
3.3. Effect of Nonpayment. This Agreement, any active Statement of Work and the Services may be suspended or terminated if Client’s account falls into arrears and five business days have passed after written notification to Client (the parties agreeing that email notification is sufficient for this purpose). Unpaid amounts are subject to interest at the lesser of 1.5% per month or the maximum permitted by law plus all collection costs. Client will continue to be charged for Services during any suspension.
4. TERM AND TERMINATION.
4.1. Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated as set forth herein, shall continue until terminated as set forth in, and in accordance with, the applicable Statement of Work (the “Term”).
4.2. Termination. Except as otherwise provided for herein, either party may terminate this Agreement (or any Statement of Work) upon the other party’s material breach of the terms of this Agreement (or any Statement of Work) that remains uncured for 30 days following notice of such breach, except that in the event of a breach of Section 2.3 or 3, the cure period is five days. The Company reserves the right to modify, or discontinue offering, any of the Services effective as of the conclusion of Client’s then-current Term.
4.3. Effect of Termination. Upon any termination of this Agreement:
4.3.1. In connection therewith, or at any time thereafter, the Company shall have the right to deactivate the Client Account and any Client User Account, including any Client Data. The Company will not be liable to Client, Client Users nor to any third party for any termination of Client’s or Client Users’ access to the Services or Software Platform, or deletion of Client Data in compliance with the terms of this section.
4.3.2. (a) any Fees owed to the Company for completed Services and work in progress, as well as Fees applicable to the duration of the terminated Term, and any other unpaid amounts, will be immediately due and payable; (b) all rights granted under this Agreement or any Statement of Work, and the Company’s obligation to provide (and Client and Client User’s right to access and use) the Services and Software Platform, will terminate; and (c) Client Data will be returned or deleted pursuant to Section 3.3.1.
5. PROPRIETARY RIGHTS; CONFIDENTIALITY.
5.1. Company Intellectual Property Rights. The Company (or its licensors or suppliers, as applicable) owns and shall retain ownership of the Client Account (excluding Client Data), all manuals, guidelines, reports, media and other documentation regarding the Services or any intellectual property of the Company which are provided in writing or electronic format by the Company to the Client (the “Documentation”), if any, the Software Platform and any other software developed by or for the Company (collectively, the “Intellectual Property”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “Intellectual Property Rights”). Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights to Client or Client Users, whether expressly, by implication, estoppel or otherwise. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. In addition, Client acknowledges and agrees that the Company may aggregate data across multiple clients, provided that the results do not identify Client (“Aggregated Anonymous Data”), and the Aggregated Anonymous Data is deemed the Intellectual Property of the Company. For clarity, the Company may use the Aggregated Anonymous Data for any purpose relating to the Company’s business, including providing Aggregated Anonymous Data to external sources, and/or combining the Aggregated Anonymous Data with external data, and to serve other business purposes as the Company deems appropriate. No jointly owned intellectual property is created under or in connection with this Agreement. Client acknowledges that the Company name, the Company logo, and the product names associated with the Services are trademarks of the Company or third parties, and no license to such marks is granted herein. Client shall not:
5.1.1. translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code, in whole or in part, from the object code to the Software Platform or Client Account made available hereunder;
5.1.2. adapt any of the Intellectual Property of the Company, in whole or in part, in any way or use it to create a derivative work; and
5.1.3. access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
5.2. Client Intellectual Property Rights. Client owns all right, title and interest, including all related Intellectual Property Rights, in and to the Client Data.
5.3. Confidential Information.
5.3.1. Client and Company hereby acknowledge and agree that during the course of this Agreement, both parties may disclose and/or obtain non-public information about the other party (“Confidential Information”). The recipient of Confidential Information (the “Recipient”) may use the Discloser’s (the “Discloser”) Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or contractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly, and with authority, disclosed by a third party to Recipient, without restriction; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.
5.3.2. Notwithstanding the foregoing, if Client elects to use any Services or component of the Software Platform which disclosure of Client’s Confidential Information to relevant third parties would be necessary or useful in providing such Services or component of the Services, Client acknowledges and agrees that, as a condition of using such Services or component, the Company will be permitted to disclose Client’s Confidential Information to such third parties, and that because such third parties are outside of the Company’s direct control, the Company will not be responsible for such third parties’ acts or omissions.
5.3.3. Recipient shall be permitted to create and maintain one (1) archival copy of the Confidential Information that is created in the normal course of their business pursuant to internal document retention policies aimed at corporate governance and compliance with applicable laws. Any such archival copies shall continue to be governed by the terms of this Agreement.
5.4. Acknowledgment of Title. The Recipient acknowledges all right, title and interest in and to the Confidential Information delivered to Recipient under this Agreement shall at all times remain with Discloser. Recipient acknowledges that by providing Recipient with access to its Confidential Information, Discloser has not waived any confidentiality privilege or trade secret protection associated with its Confidential Information.
5.5. Client Reference List. Company may include the Client's name and specified key contact or contacts in any "TrustLayer Client Reference List" that may be requested by future potential clients. Company may also use (a) Client’s name, or (b) any trademarks, service marks or trade names owned or controlled by Client, in sales, promotional, advertising or other publication.
6. LIMITATION OF LIABILITY
6.1.1. Each party ("Indemnifying Party") shall indemnify, defend and hold the other party, its affiliates and their respective directors, officers, agents and employees (collectively, "Indemnified Party") free and harmless from and against all third party claims, demands, obligations, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees (collectively, "Liabilities"), resulting from (i) the intentional or grossly negligent acts or willful misconduct of Indemnifying Party, (ii) any infringement upon any United States patent, copyright, United States trademark, or other proprietary right of a third party, or (iii) a breach of this Agreement by the Indemnifying Party.
6.1.2. Client shall indemnify, defend and hold Company, its affiliates and their directors, officers, agents and employees free and harmless from and against all claims from Client Users except for claims resulting from an alleged breach by Company of the terms and conditions and/or this MSA related to Software Platform.
6.1.3. The Indemnifying Party shall undertake full responsibility for the defense of any claim brought by any person or entity for which indemnity is sought which, if true, would constitute a breach of Indemnifying Party's representations, warranties or covenants under this Agreement. Indemnifying Party shall have no obligation to indemnify or defend Indemnified Party from or against any Liabilities resulting solely from Indemnified Party's grossly negligent acts or willful misconduct in connection with this Agreement. This Section shall survive termination of this Agreement.
6.2. Indemnification Procedures. The Indemnifying Party may contest or settle any such claim on such terms as the Indemnifying Party may choose, provided that the Indemnifying Party will not have the right, without the Indemnified Party's written consent, to settle any such claim if such settlement (i) arises from or is part of any criminal action, suit, or proceeding, (ii) contains a stipulation to, confession of judgment with respect to, or admission or acknowledgment of any liability or wrongdoing on the part of the Indemnified Party, (iii) relates to any tax matters, or (iv) provides for injunctive relief, or other relief or finding other than money damages, which is binding on the Indemnified Party.
6.2.1. Such defense will be conducted at the Indemnifying Party's sole cost and expense by attorneys retained by the Indemnifying Party and reasonably acceptable to the Indemnified Party, but the Indemnified Party will have the right to participate in such proceedings and to be separately represented by attorneys of its own choosing. The Indemnified Party will be solely responsible for the costs of its separate representation, unless the parties agree that the interests of the Indemnified Party and the Indemnifying Party in the action conflict in such a manner and to such an extent as to require, consistent with applicable standards of professional responsibility, the retention of separate counsel for the Indemnified Party, in which case the Indemnifying Party shall pay for one separate counsel chosen by the Indemnified Party.
6.2.2. The Indemnifying Party and the Indemnified Party shall cooperate in determining the validity of any claim brought by a third party for any cost, expense, damage, or loss for which a claim of indemnification may be made under this Agreement. Each party shall also use all reasonable efforts to mitigate its damages, losses, costs and expenses.
6.3. Client Accounts. Company is not a party to any agreement between Client and Client’s Users (such accounts, Client Accounts) and, except as otherwise provided under this Agreement, Company has no responsibility for Liabilities suffered or incurred by Client or Client’s Users as a result of the actions or omissions of Client Accounts. For sake of clarity, Company shall remain responsible for any and all Liabilities resulting from, in whole or in part, Company’s gross negligence or willful misconduct in connection with this Agreement, including Company’s obligations under Section 1.4 (Security) above and all indemnification obligations under this Section 6 (Limitation of Liability). Subject to the foregoing, Company is not responsible for any Liabilities arising out of or related to the failure of any of Client Accounts to maintain and convey required Insurance, bonds or other liability protection. In addition, Company is not responsible for any Liabilities arising out of or related to false or fraudulent information provided to Company within Client Accounts.
6.4. Client's Vendors. Client is not a party to any agreement between Company and Company's vendors and has no responsibility for Liabilities suffered or incurred by Company as a result of the actions or omissions of Company's vendors.
6.5. Disclaimer. EXCEPT AS OTHERWISE STATED HEREIN, THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE), THAT THE SERVICES (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTS FURNISHED BY THE SOFTWARE PLATFORM TO CLIENT (IN ORAL OR WRITTEN FORM), THE SOFTWARE PLATFORM (IN WHOLE AND IN PART), THE CLIENT ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO CLIENT, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE CLIENT’S USE OF THE CLIENT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT: (I) THE SERVICES MAY REQUIRE JUDGMENTS TO BE MADE THAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND (II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPED BY THE SERVICES.
6.6. Sharing of Information. THE SOFTWARE PLATFORM IS DESIGNED TO ALLOW CLIENT TO SHARE INFORMATION WITH CLIENT’S USERS AND OTHER THIRD PARTIES THAT WORK WITH CLIENT’S USERS THAT ALSO USE THE SOFTWARE PLATFORM. ANY DECISIONS TO SHARE INFORMATION THROUGH THE SOFTWARE PLATFORM WILL CAUSE THE RECIPIENT OF SUCH INFORMATION TO OBTAIN, USE, COPY AND DISTRIBUTE SUCH INFORMATION WITHOUT ANY LIMITATION OF CONFIDENTIALITY, CARE OR OTHERWISE. CLIENT EXPRESSLY ASSUMES THE RISK AND ANY ATTENDANT CONSEQUENCES OF ANY SUCH SHARING OF INFORMATION THROUGH THE SOFTWARE PLATFORM. THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT TO CLIENT’S DECISION TO SHARE INFORMATION THROUGH THE SOFTWARE PLATFORM, AND CLIENT EXPRESSLY ACKNOWLEDGES SUCH DISCLAIMER.
6.7. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH UNDER THIS AGREEMENT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID TO THE COMPANY PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE LIMITATION OF COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT APPLY TO LIABILITY RESULTING FROM, IN WHOLE OR IN PART, FROM ANY OF THE FOLLOWING: (i) DATA SECURITY BREACH BY COMPANY; (ii) FRAUD; OR (iii) WILLFUL MISCONDUCT. IN INSTANCES WHERE LIABILITY RESULTS FROM A DATA SECURITY BREACH, COMPANY’S MAXIMUM LIABILITY SHALL NOT EXCEED ONE MILLION AND 00/100 DOLLARS ($1,000,000).
7. Independent Contractors. The Company, and its Personnel, contractors and agents, in their performance under this Agreement, are acting as independent contractors and not as employees or agents of the Client. Under no circumstance will either party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.
8. MISCELLANEOUS TERMS
8.1. Assignment. The rights and obligations of the parties hereto may not be assigned or delegated. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assignees.
8.2. Governing Law; Jurisdiction Venue; Disputes. This Agreement is deemed to have been entered in the State of Delaware, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Venue and jurisdiction for any action or claim brought under this Agreement shall be in the courts with proper jurisdiction located in the State of Delaware, and the parties expressly submit themselves to the personal jurisdiction of such courts.
8.3. Irreparable Harm. Each party acknowledges that any breach of its obligations with respect to Section 4 may cause the other party irreparable harm or injury for which there are inadequate remedies at law and that such other party may be entitled to equitable relief in addition to all other remedies available to it. Each party agrees that, if a court of competent jurisdiction determines that such party has breached, or attempted or threatened to breach, its obligations pursuant to Section 4, the other party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved party.
8.4. Force Majeure. The Company shall not be liable to the Client for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A “Force Majeure Event” is any event beyond the control of the Company which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, defects or inefficiencies in Client’s software, defects or inefficiencies in computer equipment or hardware of Client, or any delay to the extent caused by the acts or omissions of Client.
8.5. Parties in Interest. Except as expressly provided in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to this Agreement and their respective successors and assigns, nor shall any provision of this Agreement give any third persons the right to subrogation or action over or against any party to this Agreement.
8.6. Binding. This Agreement shall be binding on the parties, their affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each party warrants that the undersigned representative of such party is authorized to execute this Agreement on behalf of such party.
8.7. Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the parties relating to the subject matter hereof.
8.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
8.9. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
8.10. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed or sent via electronic mail, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to the applicable party at its respective address as may be designated on notice to the other party pursuant these notice provisions.
802 E Whiting St
Tampa, FL 33602
With a copy to:
Silicon Legal Strategy, PC
Attn: Andre Gharakhanian
201 Mission Street, Suite 800
San Francisco, California 94105
8.11. Parties in Interest. Except as expressly provided in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to this Agreement and their respective successors and assigns, nor shall any provision of this Agreement give any third persons the right to subrogation or action over or against any party to this Agreement.
8.12. Counterparts; Electronic/Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall constitute a complete and original instrument but all of which together shall constitute one and the same agreement (notwithstanding that all of the parties are not signatories to the original or the same counterpart, or that signature pages from different counterparts are combined), and it shall not be necessary when making proof of this Agreement or any counterpart thereof to account for any other counterpart, and the signature of any party to any counterpart shall be deemed to be a signature to and may be appended to any other counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or other electronic means is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party, any facsimile or other electronic signature is to be re-executed in original form by the party which executed the facsimile or other electronic signature. No party may raise the use of a facsimile machine or other electronic means, or the fact that any signature was transmitted through the use of a facsimile machine or other electronic means, as a defense to the enforcement of this Agreement.
8.13. Rules of Usage. In this Agreement, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.
8.14. Survival. All provisions which expressly survive termination/expiration of this Agreement, or whose context requires such survival shall survive termination of this Agreement.