Subject to the terms and conditions of this Agreement we hereby grant to Client and each authorized user (“Authorized User”) for the duration the Term (as defined in the Order Form), a limited, non-exclusive, non-transferable and non-sublicensable (other than to Authorized Users in accordance with the terms hereof) right to access the Platform and receive the Services identified in the then effective Order Form for Client’s own internal business purposes. The license granted by Product Science to Client in this Section 1 will not include any right by Client to access any object code or source code of Product Science included in the Services. Client shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make available to any third party the Services or any portion thereof.
We retain sole discretion to modify equipment and facilities used to provide or maintain the Platform or Services, including to accommodate evolving technology and increased network demand, or to provide upgraded or enhanced services.
You will pay us the fees and any out-of-pocket expenses as specified on, and in accordance with the terms of, each applicable Order Form agreed and executed between the Parties. Fees may include set-up or implementation fees, periodic fees, and/or license fees, as specified on each applicable Order Form. From time to time we may adjust our fees, which change will be effective upon your written agreement. Except as provided herein all fees are nonrefundable. Unless otherwise specified in an Order Form, all invoices are due net 30 days from receipt of our invoice. Overdue payments will be subject to interest at the maximum amount permitted by applicable law. In the event any payment due hereunder is not timely paid in full (after a thirty (30) day cure period), we may undo any discounts granted and charge you the prices set forth in the applicable Order Form. You will pay us all fees and other amounts without setoff, deduction or withholding of any amounts (other than as required by applicable law). You are solely responsible for, and you will timely and fully collect and pay, any and all taxes (including sales taxes, gross receipts taxes, and value added taxes), and similar assessments related to the Services in each and every jurisdiction where such amounts are required to be charged, collected and/or remitted. To the extent Product Science is or becomes required to collect, withhold or remit taxes from you, Product Science’s failure to do so does not limit your obligations under this paragraph.
Each Party will retain ownership of all Intellectual Property owned by it as of the commencement of the Term, including Product Science Technology in the case of Product Science, and the Client Data in the case of the Client. In addition, the Client shall own all Deliverables and Intellectual Property related thereto, and Product Science hereby assigns and shall assign any and all right, title and interest thereto to you. Product Science agrees to offer reasonable cooperation to effect the intent of the foregoing, including executing any further documentation necessary to properly record such assignment. You acknowledge that the Platform is designed to analyze, find flaws in, and suggest improvements to software code of third parties (the “Platform Purpose”), and, while we will not retain a copy of the Deliverables or Client Data following the conclusion of the Term, we may use the Deliverable Extracts (as defined below) and the data generated and/or learned in the course of providing the Services to improve and enhance the Platform and for other internal development, diagnostic, corrective purposes in connection with the Platform and provision of similar services to third parties for the Platform Purpose, and for no other purpose, and you grant to us a non-exclusive, perpetual, royalty-free, irrevocable, fully paid-up, worldwide license to use the Deliverable Extracts and such data for such purposes. Except as expressly provided for herein (including in Section 5), neither Party shall modify, adapt, prepare derivative works from, decompile, reverse engineer, disassemble or replicate Intellectual Property of the other Party. As used above, “Deliverable Extracts” means excerpts of software code and related data from the Deliverables, in each case solely to the extent available to us from time to time, that allow the Platform to improve in accuracy, speed and functionality consistent with the Purpose but that do not constitute material or highly sensitive portions of the Deliverables or Client Data themselves.
“Intellectual Property” means any and all United States and foreign copyrights, rights in databases, computer programs, source code, binary files, APIs, trademark rights, trade names, service marks, trade dress rights, patent rights, trade secret rights, inventions, works of authorship, industrial design rights, know-how and other Intellectual Property rights, whether registered or unregistered, and whether statutory or at common law, wherever arising.
“Product Science Technology” means all technology and/or other Intellectual Property (including software, hardware, data, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Client by Product Science in connection with providing the Services and all improvements, innovations, derivative works based on the foregoing, including, without limitation, the Platform; provided, that Product Science Technology excludes Client Data, any Deliverables and any Intellectual Property related thereto.
“Client Data” means Client Code and any other data, information or material, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly by Product Science, from or through Client or for providing and/or improving the Services.
b. You and we agree to use commercially reasonable efforts to establish connectivity between our respective systems using security methods and protocols that would not be expected to be readily disabled or circumvented without the application of professional tools not readily or commercially available to consumers, or to implement technology which the Parties agree is comparable to the aforementioned. Without limiting the foregoing, Product Science will maintain any software code relating to the Client product in a secure location and shall use its best efforts to not allow any employees, independent contractors or consultants to remove or make any local copies thereof.
c. You acknowledge that you and your Authorized Users’ ability to access the Services is dependent upon you and such Authorized Users having (a) continuous access to the necessary telecommunications and Internet services and (b) properly configured and operational information technology infrastructure meeting such minimum system requirements as we may recommend or specify from time to time, including hardware, software, databases, systems, networks and services, whether operated directly by you or through the use of third party services.
Except as otherwise provided in this Agreement, during the term of this Agreement and for a period of five (5) years thereafter, each Party will hold the other Party’s Confidential Information in confidence, and neither Party will disclose any of the other Party’s Confidential Information to any third party. To the extent that Confidential Information is comprised of trade secrets under applicable law, the duties of nondisclosure and confidentiality will remain for as long as such information is protected under the applicable law of trade secrets. Confidential Information as used in this Agreement shall not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the receiving Party; (ii) at the time of disclosure is, or thereafter becomes, available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the receiving Party by a legal, fiduciary, or contractual obligation to the disclosing Party; (iii) was known by or in the possession of the receiving Party, as established by documentary evidence, before being disclosed by or on behalf of the disclosing Party under this Agreement; or (iv) was or is independently developed by the receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing Party's Confidential Information. Each Party will use the Confidential Information only in connection with that Party’s performance under this Agreement, and will disclose such information to its employees only on a need-to-know basis, provided that such employees are bound by obligations of confidentiality with respect to the other Party’s Confidential Information at least as restrictive as those set forth in this Agreement. Either Party may disclose Confidential Information as required by court order or otherwise by law, provided that it gives the other Party written notice in advance of such disclosure sufficient to permit the other Party to seek a protective order and, if so ordered, discloses only so much Confidential Information as necessary to comply with the order. Upon termination of this Agreement, or upon request of the other Party, either Party will return or destroy all Confidential Information in its possession, custody, or control. “Confidential Information” means all information disclosed by one Party to the other during the term of this Agreement and which (a) is marked as “Confidential” at or before the time of disclosure, or (b) a reasonable person in the circumstances would know is confidential or proprietary information of the Party disclosing such information.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR THEIR PARENT COMPANIES, SUBSIDIARIES, PARTNERS, AND/OR THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR OTHER PERSONNEL (“CONTRACT PARTIES”) BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHER LEGAL OR EQUITABLE THEORY OR CAUSE OF ACTION, FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, SAVINGS, REVENUE, USE OF SOFTWARE OR HARDWARE OR BUSINESS OPPORTUNITY, INTERRUPTION OF BUSINESS, OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE MAXIMUM LIABILITY OF ALL CONTRACT PARTIES (ON A COMBINED BASIS) TO THE OTHER PARTY UNDER THE AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS ACTUALLY RECEIVED BY PRODUCT SCIENCE FROM YOU IN RESPECT OF THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH LIABILITY, LESS THE AGGREGATE AMOUNT OF ALL REFUNDS, CHARGEBACKS, AND OTHER AMOUNTS, IF ANY, THAT ARE PAYABLE OR REIMBURSABLE TO PRODUCT SCIENCE BY YOU BUT HAVE NOT YET BEEN PAID BY YOU; PROVIDED, THAT, IN LIEU OF MONETARY DAMAGES, YOU MAY REQUEST PRODUCT SCIENCE TO CORRECT ANY MATERIAL NONCONFORMANCE IN THE SERVICES IDENTIFIED BY YOU IN REASONABLE DETAIL TO PRODUCT SCIENCE BY WRITTEN NOTICE WITHIN TEN (10) CALENDAR DAYS AFTER THE RELEVANT SERVICES ARE PERFORMED, ANY ACTION AGAINST EITHER PARTY BY THE OTHER PARTY IN CONNECTION WITH THE AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE END OF THE TERM. THIS SECTION 7 SHALL NOT APPLY TO EITHER PARTY’S GROSS NELIGENCE OR WILLFUL MISCONDUCT.
NEITHER PRODUCT SCIENCE NOR ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD PARTY DATA PROVIDERS, MERCHANTS, LICENSORS, NOR THE LIKE, MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND EACH DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE PROVIDED UNDER THIS AGREEMENT OR ANY APPLICABLE Order Form. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN IN THIS AGREEMENT OR ANY Order Form, PRODUCT SCIENCE DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT SCIENCE TECHNOLOGY OR SERVICES WILL BE ERROR-FREE OR THAT THEY WILL NOT BE INTERRUPTED, NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCT SCIENCE TECHNOLOGY OR SERVICES, OR AS TO THE ACCURACY, RELIABILITY, OF ANY DATA GENERATED THROUGH THE USE OF THE PRODUCT SCIENCE TECHNOLOGY OR SERVICES. CLIENT ACKNOWLEDGES AND AGREES THAT (A) BY USING THE PRODUCT SCIENCE TECHNOLOGY AND/OR THE SERVICES, IT IS NOT ASSURED OF ANY PARTICULAR LEVEL OF REVENUES, PROFITS, RESULTS OR SUCCESS, AND (B) NO CLAIMS OR ASSURANCES OF GUARANTEED LEVELS OF PERFORMANCE THAT MIGHT RESULT FROM ITS EFFORTS HAVE BEEN MADE BY PRODUCT SCIENCE OR ANY OTHER ENTITY OR PERSON AUTHORIZED TO COMMUNICATE ON BEHALF OF PRODUCT SCIENCE.
Product Science hereby agrees to indemnify, defend and hold you (Client), your affiliates and your and their respective directors, managers, officers, employees and agents (collectively, the "Indemnified Customer Parties") harmless from and against any and all any and all claims, proceedings, losses, damages, liabilities, fees, costs and expenses (including reasonable legal fees and expenses and any costs or expenses in investigating, settling or defending any pending or threatened claims) (each, an “Indemnifiable Loss”) arising out of or related to (1) Product Science’s willful breach of the Agreement or Product Science representations, warranties or covenants in the Agreement, (2) infringement of third party Intellectual Property rights by or due to Intellectual Property provided by or on behalf of Product Science, (3) Product Science’s gross negligence or willful misconduct, or (4) any use or disclosure by or on behalf of Product Science of any of your Confidential Information in violation of the Agreement, in each case except to the extent such Indemnifiable Loss is caused by the gross negligence or willful misconduct of you or your representatives, as finally determined by a court or arbitrator of competent jurisdiction without opportunity for further appeal. Product Science will cooperate with the Indemnified Customer Parties in the investigation, settlement or defense of any Indemnifiable Loss in connection with a claim brought or asserted by a third party (a “Third Party Claim”) against Indemnified Customer Parties. The Indemnified Customer Parties reserve the right, at their own expense, to employ separate counsel and assume the exclusive defense and control of any Third Party Claim otherwise subject to indemnification by Product Science pursuant to this paragraph. You will provide Product Science with written notice of any Indemnifiable Loss subject to indemnification by Product Science pursuant to this paragraph, promptly after becoming aware of such Indemnifiable Loss.
You hereby agree to indemnify, defend and hold Product Science, Product Science’s affiliates and their respective directors, managers, officers, employees and agents (collectively, the "Product Science Parties") harmless from and against any and all Indemnifiable Losses arising out of or related to (1) your willful breach of the Agreement or your representations, warranties or covenants in the Agreement (2) infringement of third party Intellectual Property rights by or due to information or Intellectual Property provided by you or on your behalf, (3) your gross negligence or willful misconduct, (4) any improper use or disclosure by you or on your behalf (including by your representatives) of any Confidential Information of Product Science in violation of the Agreement, in each case except to the extent such Indemnifiable Loss is caused by the gross negligence or willful misconduct of Product Science, as finally determined by a court or arbitrator of competent jurisdiction without opportunity for further appeal. You will cooperate with the Product Science Parties in the investigation, settlement or defense of any Third Party Claim against Product Science Parties. The Product Science Parties reserve the right, at their own expense, to employ separate counsel and assume the exclusive defense and control of any Third Party Claim otherwise subject to indemnification by you pursuant to this paragraph. Product Science will provide you with written notice of any Indemnifiable Loss subject to indemnification by you pursuant to this paragraph, promptly after becoming aware of such Indemnifiable Loss.
If the Order Form specifies that the Services require Product Science’s compliance with specific statutory or regulatory provisions regarding data security or privacy, such as the European General Data Protection Regulation or the Health Insurance Portability and Accountability Act, then you and Product Science will set forth the mutually-agreed terms and scope of such compliance obligations into the Order Form, and Product Science will comply with such terms in the Order Form, and implement reasonable physical and electronic security and privacy measures with respect to data you provide to Product Science in accordance with such terms. If no such compliance terms are included in the Order Form, then Product Science shall implement reasonable physical and electronic security and privacy measures as are generally accepted in the industry as the same may change from time to time, such measure being subject to Client’s review upon written notice. Except for information as to which Product Science has agreed in the Order Form to maintain and secure in accordance with data security or privacy laws, you will not, and will not permit your representatives to, provide or transmit to Product Science or its personnel any personally-identifying customer or user information or other data of a third party in violation of applicable data security or privacy laws or which imposes a duty of care upon Product Science or its personnel under applicable data security or privacy laws.
During the Term, Product Science may list Client as a customer and use Client’s name and logo on the Site, on publicly available customer lists and in media releases.
Neither Party shall assign or otherwise transfer, delegate or subcontract this Agreement or any of its rights and obligations under this Agreement, without the other Party’s prior written consent. Any assignment or transfer in violation of this Section 13 will be void. Notwithstanding the foregoing, either Party may assign this Agreement without the other’s consent (a) in connection with a merger, acquisition or sale of all or substantially all of its assets, or (b) to any affiliate or as part of a corporate reorganization. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective permitted successors and assigns.
All notices and other communications hereunder shall be in writing and shall be deemed given to, delivered to and/or received by the relevant recipient Party: (i) upon personal delivery to such Party; (ii) three (3) days after being mailed to such Party by certified or registered mail, postage prepaid, return receipt requested; (iii) one (1) business day after being sent to such Party via a nationally recognized overnight courier service (proof of delivery, but not acceptance, required); or (iv) on the business day when transmitted via facsimile or email (with confirmation of transmission, but not of receipt, required). All communications shall be sent to the Parties at their respective addresses as set forth in the Order Form, as the same may be updated by the relevant recipient Party from time to time by written notice to the other Party.
If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such provision shall not affect the other provisions hereof, but such court shall have the authority to modify such provision to the extent necessary to render it valid and enforceable, preserving as closely as possible the intent of the parties set forth herein.
The Agreement shall be executed and binding between the Parties by means of your electronic execution (a) clicking a box indicating acceptance; (b) executing an Order Form that references this Agreement; or (c) using the Services on a free trial basis.
The Term will commence on the Effective Date and will remain in effect for the time period specified in the Order Form, if any, or until terminated pursuant to this Section 17. Either Party may terminate this Agreement or any Order Form for a material breach of the other Party, provided that the nonbreaching Party has given the other Party at least thirty (30) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating Party’s right to exercise any other remedy for breach. Either Party may terminate this Agreement immediately by providing written notice to the other Party if the other Party becomes insolvent, if a petition for voluntary or involuntary bankruptcy concerning the other Party is filed by or against the other Party under any chapter of the United States bankruptcy laws and not bonded or discharged within thirty (30) days of the date a receiver or trustee is appointed, or if the other Party makes an assignment for the benefit of creditors. The terms in Sections 4, 5, 6, 7, 8, 9, 10 and 19 will survive termination of this agreement.
You, Product Science and its personnel are independent contractors in connection with the matters described in the Agreement. The Agreement and any exhibits and/or attachments thereto (including the Order Form) represent the entire agreement between you and Product Science with regard to the matters covered by the Agreement and it supersedes any prior or contemporaneous agreements (whether written or oral) between you and Product Science with regard to the matters covered by the Agreement. Each Party represents and warrants to the other that it has the legal power and authority to execute, deliver and perform the Agreement, and that such Party has caused the Agreement to be executed on its behalf by its authorized representative with the requisite power and authority to bind such Party to the undertakings and obligations contained herein.
The Agreement is governed by and is to be interpreted and enforced in accordance with the laws of the State of California. Any controversy or claim between the Parties arising out of or relating to the Agreement will be resolved by arbitration through the American Arbitration Association (“AAA”) held in Los Angeles county in accordance with the AAA commercial arbitration rules then in force, and judgment upon the award rendered may be entered in any court of competent jurisdiction. The Parties each hereby expressly consent to submit any such disputes to that forum and to consent to the jurisdiction of the federal and state courts located in Los Angeles county, California with respect to the enforcement of such award. The prevailing Party in any such proceeding will be entitled to an award of its costs and reasonable legal fees and disbursements.