This Services Agreement is entered into and effective as of June 26th, 2023 by and between CuVo Inc, organized under the laws of the State of Delaware, with address at 98 Inverness Dr. E Ste 250, Englewood, CO, 80112 and Customer. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1. “Affiliate” means an entity that controls, is controlled by, or is under common control with a party to this Agreement. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through ownership of fifty percent (50%) or more of the voting or equity securities of such entity or its assets.
1.2. “Agreement” means this Subscription Services Agreement, annexure, exhibits, Statements of Work or attachments hereto.
1.3. “Change” means any change, modification or enhancement to a Statement of Work.
1.4. “Company Intellectual Property” shall have its definition as set forth in clause 5.2.
1.5. “Competitor” means any entity that may be reasonably construed as offering competitive functionality or services or products to those offered by the Company.
1.6. "Customer Data" means electronic data, content or other information collected, received, maintained or hosted by the Subscription Service in connection with Customer’s or its Users’ use of the Subscription Service, or Company’s performance of its obligations under this Agreement, including for the avoidance of doubt, any personal data or personally identifiable information, all of which shall be considered Customer’s confidential information.
1.7. “Customer Suggestions” includes suggestions, ideas, enhancement requests, recommendations or other feedback provided by Customer or its Users, whether solicited or unsolicited, relating to the operation or functionality or improvement of the Subscription Service or Software, excluding Customer Data and Customer Confidential Information.
1.8. “CuVo Application” shall have its meaning as ascribed to it in clause 1.17.
1.9. “Data Breach” means unauthorized disclosure or exposure of Customer Data stored or accessible through the Subscription Service.
1.10. “Documentation” means the user manuals for the Subscription Service, as updated from time to time, that describe the functions, operation and use of the Subscription Service, that Company makes generally available to subscribers of the Subscription Service.
1.11. “Error” means any material error or defect in the Subscription Service that causes it not to conform in material respects to the Documentation.
1.12. “Error Corrections” means modifications that correct Errors.
1.13. “Improvements” means updates, enhancements, extensions, modifications and new releases to the Subscription Service (other than Error Corrections) that Company elects to incorporate into and make a part of the Subscription Service or Software, and for which Company does not charge an additional fee.
1.14. “Intellectual Property Rights” means any and all Worldwide intellectual property rights, including copyright, rights in registered and unregistered trademarks (including domain names), trade secrets, patents, designs, trade or business names, know-how, database rights, or other proprietary rights (including rights in any invention, discovery, or process) (“Intellectual Property”), whether capable of registration or not; or registered or unregistered under statutory or common law or under any applicable laws anywhere in the world, and all moral rights related thereto.
1.15. “Order” shall mean the Quote as mutually accepted and executed by the prospective or current customer and the Company, which shall be deemed to be an integral part of this Agreement by reference.
1.16. “Platform” shall mean the framework of operating system, programming language and the device which are intended and designed to work together.
1.18. “Quote” shall mean the quotation offered by the Company which may include among other things as appropriate, the services to be provided, the number of subscriptions ordered, the Subscription Period, the scope of work, the applicable fees.
1.19. “Subscription Fee” is the fee for the Subscription Service that is more particularly described in the Quote which includes the Monthly Subscription Fee, Support Services Fee per Platform and may include any fee for Optional Subscription as mutually agreed.
1.20. “Subscription Period” shall mean the term for which the Customer subscribes the Subscription Services or other services, as more particularly described in the Order or SOW respectively, as the case may be and includes any periods of renewal.
1.21. “Subscription Service” means the subscription to the online web-based CuVo application (“CuVo Application”), including associated Software and Documentation, if any, hosted and operated by Company hereunder. Company shall host the Subscription Service and subject to the terms of this Agreement may update the content, functionality and user interface thereof with Error Corrections, Improvements and other modifications from time to time at its discretion.
1.22. “Software” means computer programs in machine-readable object code form to which access is provided as part of the Subscription Service.
1.23. "Statement of Work" or “SOW” means the document mutually agreed between the Parties in writing from time to time for the order of any additional services mutually agreed between the Parties in addition to the Subscription Service.
1.24. “Support Services” means Company’s standard support services for the Subscription Service which means the deployment of Error Corrections, bug fixes, regular maintenance and Improvements, but exclude Upgrades or support with any third party software or hardware or training.
1.25. “Support Services Fee” shall mean such fee in addition to the Subscription Services Fee to be paid by the Customer every month which fee is more particularly described in the Order.
1.26. “Upgrades” means significant or material changes, features, functions or capabilities of the CuVo Application that the Company may make available, but is not obligated, to its customers for an additional fee which shall be at the Company’s discretion.
1.27. "Users" means Customer's employees, consultants, and contractors (provided they are not direct Competitors of Company) who are authorized by Customer to use the Subscription Service and have been supplied user identifications and passwords by Customer (or by Company at Customer's request).
1.28. “Work Product” means works of authorship (other than Software) that Company delivers to Customer in the course of providing Subscription Services or pursuant to this Agreement. Work Products may be created during performance of its obligations by the Company under this Agreement. Examples include tangible deliverables, interface and other customized code; specialized or tailored training curriculum and course materials; custom reports, logic or design.
1.29. “Worldwide” shall mean the countries where the Company may offer its products or services to customers, excluding Iran, North Korea or any countries or territories embargoed or under a sanction administered by the US Department of Treasury’s Office of Foreign Assets Control (OFAC) or any other relevant US authority or any other applicable authority, as may be notified from time to time.
2. Company’s Obligations
2.1. Provision of Subscription Service
2.1.1. Company shall make the Subscription Service available to Customer pursuant to the terms and conditions set forth in this Agreement for the Subscription Period. During the Subscription Period the Company shall provide Customer and its Users access to the CuVo Application as per the Documentation. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written comments made by Company with respect to future functionality or features.
2.1.2. Change to the Services. The Customer understands that the Company reserves the right to, including without limitation, modify, change, suspend, degrade or discontinue certain features or functionalities of its products and services; or our website (or any portion thereof) or modify any criteria to avail or access the Company’s products or services or website (“Change in Service”) at its sole discretion without prior notice. The Customer agrees that the Company will not be liable to it or any third party for any Change in Service.
2.1.3. Subject to the terms hereof and payment of the applicable fees including the Subscription Services Fee and the Support Services Fee, Company during the Subscription Period, grants Customer a Worldwide, non-exclusive, non-transferable, non-sublicensable and terminable license to access and use the Subscription Service, together with the Documentation, solely for Customer’s internal business operations and those of its Affiliates during the Subscription Period, provided such use is as per the Company’s acceptable use.
2.2. Statement of Work (SOW); Optional Customization and New Platform Development
2.2.1. Wherever a separate SOW is mutually executed, User subscription details and fees shall be as per the SOW. In all other cases where there is no separate SOW this Agreement shall prevail.
2.2.2. In the event that there needs to be a Change to the SOW and in the event that the Parties mutually agree to the Change and the terms and conditions that govern it, the Parties will execute a Change order for the execution of the Change (“Change Order”). Unless such Change Order is mutually executed as per the terms of this Agreement, no obligation to carry out the Change would be binding on the Company.
2.2.3. OPTIONAL CUSTOMIZATION Customer understands that the CuVo Application comes with a set of default features (as more particularly detailed in the Documentation) along with an option for Customization. The Customer may configure the Customization on its own, if it chooses to. In the event that the Customer would require the Company to support it with Customization fee more particularly described in the Order. For the purpose of this clause, “Customization” would mean customizing the CuVo Application as per requirements as mutually agreed.
2.2.4. NEW PLATFORM DEVELOPMENT As on date of the Order the CuVo Application is supported on the existing Platform(s) only, the list of which is more particularly defined in the Order or as listed out at www.cuvo.io (“Existing Platforms”). In the event that the Customer requires that a new Platform other than the Existing Platform as on the date of the Order (“New Platform”) be developed, the Customer would communicate such a New Platform development request in writing to the Company for its acceptance (“New Platform Development Request”). Upon considering the feasibility for development and deployment of the New Platform as per the New Platform Development Request, the Company may provide its acceptance to such a request. Upon such acceptance by the Company, the Parties would mutually discuss and endeavor to agree on the specification and timelines for development and deployment of the New Platform. Thereupon the Customer would be required to pay an agreed fee for such New Platform Development Fee per Platform, more particularly described in the Order or the New Platform Development Request as the case may be, in advance upon execution of the SOW for development of such a New Platform.
3. Responsibilities of Parties
3.1. Company Responsibilities. Company shall: (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (ii) maintain the security and integrity of the Subscription Service and the Customer Data; (iii) provide telephone and/or online standard Support Services to Customer or Users in accordance with its standard procedures which will be charged to the Customer at the Support Services Fee, more particularly described in the Order; and (iv) make the Subscription Service available as per the Documentation.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts. Customer acknowledges that the ability of Company to provide the Subscription Service requires the cooperation of Customer in providing Company with timely responses to reasonable requests for information, and the prompt and timely performance by Customer of its obligations. Company shall be excused from performing the Subscription Service to the extent that Customer delays or refuses to perform its obligations or provide Company with such requested assistance or information. Customer agrees with respect to Subscription Service: (i) to provide the technology and facilities, including access to the Internet, as required to use them; (ii) to complete the implementation and set-up process as required by Company; (iii) that it is responsible for maintaining the confidentiality of passwords and account information required for access to them, and for all acts that occur in connection with Customer’s account; (iv) to notify Company as soon as reasonably practicable after learning of any unauthorized use of Customer’s account, breach of security, or loss or theft of user names or passwords; (v) that use of the Subscription Service is limited to use by Users for which applicable fees have been paid and that such use does not include the right to resell or sublicense; (vi) to abide by all applicable local, state, national and international law and regulations including without limitation protection of personally identifiable information, and other laws applicable to the protection of Customer Data, and not to use the Subscription Service for any purpose that is unlawful, not contemplated or prohibited under this Agreement or under any applicable law which may be applicable from time to time; (vii) to abide by the acceptable use policy of the Company and (viii) that while the security of Customer’s account will be maintained through the use of passwords, it is possible for Customer’s account to be accessed by unauthorized third parties via communication between Customer and Company using the Internet, other network communications, facilities, telephone, or any other electronic means and the Customer shall take all possible measures to ensure that the security of the Customer’s account is being maintained to ensure no such unauthorised access to the Subscription Service.
Customer shall assist Company, as reasonably requested by Company, in connection with the configuration and implementation of the Subscription Service. This assistance includes providing Company with the information and Customer systems reasonably required by Company to enable it to provide the Subscription Service. Customer shall also: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service, and notify Company promptly of any such unauthorized use and cooperate to remedy the situation; and (iii) comply with all applicable local, state, federal, and foreign laws in implementing and using the Subscription Service. Customer agrees to notify Company of any material failure, malfunction, or error in the Subscription Service that the Customer detects and to reasonably assist Company in its attempts to test and verify the suspected error.
3.2.1. Support Services Request Process: The Customer shall submit support requests (“Support Requests”) to the Company through the Company’s designated channel. The Support Request should include a detailed description of the issue or the question or the relevant error message or any supporting documentation or screenshots of the issue that requires attention or resolution.
3.3. Use Guidelines & Restrictions. Customer shall use the Subscription Service solely for its internal business purposes as permitted by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or use as a service bureau or make the Subscription Service available to any third party, other than as expressly agreed under this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Subscription Service to knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Subscription Service or its related systems or networks.
3.3.1. Customer shall not (i) modify, copy or create derivative works based on the Subscription Service or CuVo Application or Company’s Intellectual Property; (ii) create Internet "links" to or from the Subscription Service, or "frame" or "mirror" any content forming part of the service, other than on Customer's own intranets or otherwise for its own internal business purposes; or (iii) disassemble, reverse engineer, or decompile the Subscription Service or Company technology, or access it or do any act directly or indirectly in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Subscription Service, or (c) copy any ideas, features, functions or graphics of the Subscription Service.
3.4. Other Responsibilities of the Parties. Company is responsible for the supervision, direction, and control of its personnel engaged in providing Subscription Service under this Agreement. Company reserves the right to determine the assignment of its personnel and the Company may subcontract a service, or any part of it, to subcontractors selected by Company. Customer agrees to provide Company, at no charge, (as applicable) with safe and sufficient access to and use of its facilities including a suitable technical environment and royalty-free license and rights to use, copy, and modify necessary materials and software and use communications resources; system and user documentation; office space; personnel; and services as reasonably required by Company to enable it to fulfill its obligations under this Agreement. Company’s performance of services is contingent upon Customer’s timely and effective performance of its responsibilities, decisions, and approvals, and Company may rely on Customer decisions and approvals. Customer is responsible for the results obtained from the use of the Subscription Services.
4. Subscription Period; Fees & Payment
4.1. Setup, Subscription Service Fees & Support Services Fee. Customer shall pay all fees including Subscription Services Fee, Support Services Fee, Monthly Recurring Fee, any fee applicable for additional scope that the Customer may request which is more particularly described in the Order(“Fee”). All Fee are payable in the currency as mutually agreed. Except as otherwise expressly provided under Section 8.1 (Indemnification) and Section 10.4 (Termination for Cause), Fee is non-refundable, and wherever applicable, the number of User subscriptions purchased cannot be decreased during the term stated on the relevant SOW.
4.2. Invoicing & Payment. Unless otherwise as specifically agreed to under an SOW or the Order, all Fee are due and payable net thirty (30) days from the invoice date.
4.3. Overdue Payments. Any payment of Fee not received from Customer by the applicable due date may accrue, at Company’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. However, such interest will not apply to the extent a payment is the subject of a good faith dispute between the Parties provided that Customer has notified Company of such dispute in writing and is working with Company to expeditiously resolve the dispute. For the sake of clarity the Parties agree that for a dispute to be a good-faith dispute (for the purposes of this clause 4), the Customer should notify its disagreement or dispute within five (5) days of receiving the invoice from the Company.
4.4. Suspension of Subscription Service. If Customer's account is thirty (30) days or more overdue (except with respect to charges under reasonable and good faith dispute), in addition to any of its other rights or remedies, Company reserves the right to suspend the Subscription Service provided to Customer, without liability to Customer, until such amounts are paid in full.
4.5. Taxes. None of the Company’s fees quoted by the Company includes any local, state, federal or foreign taxes, levies or duties of any nature. In the event that any taxes become applicable including due to change in law, the Customer would be responsible for such amounts.
5. Proprietary Rights; Data Obligations
5.1. Ownership. As between the Parties, excepting for Customer Data, Company owns all rights, title and interest, including all Intellectual Property Rights including without limitation to (i) the Subscription Service, Software, Work Product, Documentation (all updates, Improvements and Error Corrections), Company Intellectual Property (ii) CuVo trademark or any other trademark or domain names and goodwill therein or associated therewith (iii) all CuVo data and other material supplied by CuVo developed for use in connection with the Subscription Service or the Software.
5.2. Reservation of Rights. Customer acknowledges that in providing the Subscription Service, Company utilizes (i) the Company name, the Company logo, Company’s domain name, the product and service names associated with the Subscription Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) Company intellectual property, which shall include any intellectual property, owned by Company or to which the Company has right or permission to use, whether capable of registration or not, including without limitation Software, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, proprietary information, techniques, designs, inventions and other tangible or intangible technical material or information whether such may be covered by Intellectual Property Rights owned or licensed by Company or not; discoveries, algorithms, user interfaces, designs, formulae, know-how, databases, processes, business methods, patents, trademarks, service marks, copyrights, computer software, computer programs (source codes and object code), ideas, creations, writings, lectures, illustrations, photographs, scientific and mathematical models; improvements to all such property or derivatives or improvements thereof (whether capable of being registered or not), and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form or any form whatsoever (“Company Intellectual Property”). Customer acknowledges and agrees that Company owns all interest, right, title and Intellectual Property Rights in and to the Software and Subscription Service, Company Intellectual Property and any Improvements or derivatives thereof. Any rights not expressly granted herein are reserved by Company. Other than as expressly set forth in this Agreement, no license or other rights in or to the foregoing are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.3. Work Product. Company has all right, title, and interest (including all Intellectual Property Rights) to all Work Product. Company will deliver one (1) copy of each Work Product deliverable to Customer, and hereby grants Customer during the Subscription Period a non-exclusive, worldwide, fully paid-up license to use such Work Product solely in connection with its use of the Subscription Service to the same extent and pursuant to the same terms and conditions as provided in this Agreement.
5.4. Customer Data.
5.4.1. As between Company and Customer, all Customer Data input into the Subscription Service is owned exclusively by Customer. Customer Data shall be considered Confidential Information of the Customer subject to the terms of this Agreement. Company may access Customer's User accounts, including Customer Data, solely to respond to service or technical problems or at Customer's request.
5.4.2. Data Security. Company shall exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Customer Data. In addition, and without limiting the generality of the preceding sentence: (a) Company shall maintain, implement, and comply with a written data security program that requires commercially reasonable policies and procedures to ensure compliance with this Section. Company’s said policies and procedures shall contain administrative, technical, and physical safeguards, including without limitation: (i) guidelines on the proper disposal of Customer Data after it is no longer needed to carry out the purposes of the Agreement; (ii) access controls on electronic Subscription Services used to maintain, access, or transmit Customer Data; (iii) access restrictions applicable to the cloud platform that stores Customer Data; (iv) encryption of electronic Customer Data; (v) testing and monitoring of electronic Subscription Services; and (vi) procedures to detect actual and attempted attacks on or intrusions into the Subscription Services containing or accessing Customer Data. Company shall review said policies and procedures and all other Customer Data security precautions regularly, but no less than annually, and update and maintain them to comply with applicable laws and regulations. In the event of a Data Breach, or in the event that Company suspects a Data Breach, Company shall (i) promptly notify Customer and cooperate with Customer and law enforcement agencies, where applicable, to investigate and resolve the Data Breach, including without limitation by providing reasonable assistance to Customer in notifying injured third parties. Company shall give Customer prompt access to such records related to a Data Breach as Customer may reasonably request (to the extent such records are under the control of the Company), provided such records do not include Company Confidential Information. Further the Company shall not be required to provide Customer with records belonging to or compromising the security of its other customers.
5.4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Subscription Service, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
Pursuant to a legal order, Customer may modify Customer’s standard data management policies by providing written versions of such policy modifications to Company, provided Company is not required to accept any such revision without reasonable additional compensation if it materially increases Company’s obligations. Except as permitted in such policy, Company shall not erase Customer Data, or any copy thereof, without Customer’s prior written consent and shall follow any written instructions from Customer regarding retention and erasure of Customer Data. Unless prohibited by applicable law, Company shall purge all Subscription Services under its control of all Customer Data at such time as Customer may request. Promptly after erasure of Customer Data or any copy thereof, Company shall certify such erasure to Customer in writing. In purging or erasing Customer Data as required by this Agreement, Company shall leave no data recoverable on its computers or other media, to the maximum extent commercially feasible. Finally, Company shall not transfer Customer Data outside the United States (the “Approved Region”) without Customer’s prior written consent.
5.4.5. Data Accuracy. Company shall have no responsibility or liability for the accuracy of data uploaded to the Subscription Service by Customer, including without limitation Customer Data, any other data uploaded by Users.
5.4.6. Data Deletion on Breach. Company may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated due to Customer’s breach of this agreement for a continuous period of ninety (90) days or more.
5.4.7. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Company’s computers or other media, any data (“Excluded Data”) regulated pursuant to US-EU Safe Harbor Program, the US-Swiss Safe Harbor Program, the Payment Card Industry Data Security Standard, and the Health Insurance Portability and Accountability Act (the “Excluded Data Laws”). Customer RECOGNIZES AND AGREES THAT: (a) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) COMPANY’S SUBSCRIPTION SERVICES ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
5.4.8. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 5.4, Company will not reproduce, publicize, or otherwise exploit Aggregate Customer Data in any way, unless authorized by Customer or a User, provided such use complies with applicable law and regulations. (“Aggregate Customer Data” refers to Customer Data with the following removed: the names and addresses of Users and other personally identifiable information.) Notwithstanding anything to the contrary or any of the foregoing, Customer may use data (including Aggregate Customer Data), feedback or any other input received by it or through the CuVo Application to develop Improvements or to train its existing Software models and such use shall not be a violation of this clause and the obligations herein.
5.5. Customer Suggestions. Company shall have no obligation to make Customer Suggestions and Improvements. However, in the event the Company chooses to incorporate such Customer Suggestions or any part thereof into the Subscription Service or Software, which shall be at its sole discretion, all rights, including without limitation the Intellectual Property Rights whether registered or unregistered or capable of registration or not, in any Improvement that results from incorporation of such Customer Suggestions shall solely be owned by the Company. Customer acknowledges that no Customer Suggestion is confidential information and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Customer Suggestions, without compensating or crediting Customer or the User in question.
6.1. Customer Confidential Information. The terms of this Agreement are confidential. Company acknowledges that in providing services to Customer, it may have access to certain non-public business information of Customer, including, but not limited to Customer Data. Such information will be treated as Confidential Information of Customer (“Customer Confidential Information”) by the Company. Company agrees that it will: (a) treat all Customer Confidential Information with the same degree of care as it accords its own confidential information, but not less than reasonable care; (b) use the Customer Confidential Information only in connection with providing Subscription Service under this Agreement; and (c) not disclose or disseminate the Company Confidential Information to any third party.. Company agrees that the only employees and contractors who will have access to Customer Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement.
6.2. Company Confidential Information. The terms of this Agreement are confidential. In addition, the Documentation, Subscription Service, Software, Work Product constitute confidential information of the Company (“Company Confidential Information”). Customer agrees that it will: (a) treat all Company Confidential Information with the same degree of care as it accords to its own confidential information, but not less than reasonable care; (b) use the Company Confidential Information only in connection with its use of the Subscription Service provided under this Agreement; and (c) not disclose or disseminate the Company Confidential Information to any third party. Customer agrees that the only employees and contractors who will have access to Company Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement.
6.3. Exceptions to Confidentiality. Information will not be deemed Confidential Information of either Customer or Company under this Agreement if such information: (a) is or becomes rightfully known to recipient without any obligation of confidentiality or breach of this Agreement; (b) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient of such Confidential Information; or (c) is independently developed by the recipient of such Confidential Information without use of the other party’s’ Confidential Information or derivatives thereof. The recipient of such Confidential Information may disclose such Information pursuant to the requirements of a governmental agency or by operation of law, provided that the recipient gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
6.4. Unauthorized Disclosure; Remedies. If a Party believes that there has been an unauthorized disclosure of Confidential Information, it shall promptly notify the other Party. The Parties will reasonably assist each other in remediating or mitigating any potential damage. The cost of remediation or mitigation shall be borne by each Party to the extent the breach or incident was caused by it. If a Party discloses or uses (or threatens to disclose or use) any of the other Party’s Confidential Information in breach of this Section 6, the disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
7. Warranty and Disclaimer
7.1. Warranties. Each Party warrants that it has the status, authority and capacity to enter into this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the system; and (c) it is a corporation, the sole proprietorship of an individual eighteen (18) years or older, or another entity authorized to do business pursuant to applicable law.
7.2. Company warrants that the CuVo Application will conform to the Documentation. 12
7.3. Customer represents and warrants that, to the best of its knowledge, Customer will accurately identify each User and will not provide any inaccurate information about a User to or through the Subscription Service or the Software.
7.4.1. Company has no obligations or responsibilities of any kind including the breach of 7.1 to the extent the use of Subscription Services or CuVo Application or Software is (i) not expressly authorized by this Agreement or any SOW; (ii) in violation of the applicable law; or (iii) modified by anyone other than Company or its contractors; or (iv) used in combination with any hardware or software or data which was not initially setup by the Company or not in compliance with the Documentation; or (v) use of the Subscription Service or CuVo Application or Software is inconsistent with the Documentation; in each case the breach of warranty would not have occurred but for such access or use.
7.4.2. Company warrants that it will use commercially reasonable efforts to maintain the uptime for the network-based aspects of the Subscription Service, provided however that Company’s warranty does not apply to any downtime resulting from (i) a failure in a Customer’s or a third party’s network infrastructure or (ii) scheduled updates, upgrades or maintenance. Company does not warrant that the Subscription Service will perform without interruption or be error free. Customer shall not use the Subscription Service for nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control, life support devices, or other ultra-hazardous uses where failure of the application to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses. Any attempt to do so shall be at Customer’s sole risk and shall be deemed as a material breach under this Agreement.
7.4.3. If Company provides warranty for any problem caused by any of the foregoing or for troubleshooting with respect to any of the foregoing, or if Company’s services efforts are increased as a result, Company may impose charges at its then standard commercial time and materials rates for all such services, including travel and per diem expenses. The Company will notify the Customer the billable status and the cost for the troubleshooting and the Customer may at its discretion may opt for such troubleshooting which shall be deemed to be at such additional billable cost.
7.5. Remedies. Subject to the terms of this Agreement and save as provided in clause 7.4, the Subscription Services or CuVo Application shall substantially conform to the Documentation . If non-conformance to the Documentation is discovered, Company shall promptly remedy such errors at no additional expense to Customer. Notwithstanding anything to the contrary including without limitation under clause 11.3 (Waiver and Cumulative Remedies), the provisions of this Section constitute Customer’s sole and exclusive remedy, and Company’s sole and exclusive liability in this regard.
7.6. Disclaimer. SOFTWARE IS PROVIDED “AS IS” AND EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED HEREIN, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY HEREBY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS INCLUDING ANY REPRESENTATION, WARRANTY OR CONDITION OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE SUBSCRIPTION SERVICE, CUVO APPLICATION OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL BE SUITABLE FOR OR MEET THE REQUIREMENTS OF CUSTOMER.
8. Mutual Indemnification
8.1. Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the base Subscription Service as contemplated hereunder infringes a United States or European Union patent or copyright of a third party and pay all damages finally awarded by a court of competent jurisdiction attributable to such claim, or agreed to in a settlement by Company; provided, that Customer (a) promptly gives written notice of the Claim to Company; (b) gives Company sole control of the defense and settlement of the Claim; and (c) provides to Company all available information, assistance and authority to defend; and (d) not have compromised or settled such proceeding without Company’s prior written consent. Should the Subscription Service become, or in Company’s opinion be likely to become, the subject of a claim for which indemnity is provided hereunder, Company will either: (a) obtain for Customer the right to use the Subscription Service; or (b) replace or modify the Subscription Service so that it becomes non-infringing. If Company, in its sole discretion, concludes that neither of these alternatives is reasonably available, Customer agrees to immediately cease its use of the Subscription Service on Company’s written request and Company will reimburse Customer for any prepaid, unused Subscription Service fees for the period after Customer’s cessation of use of the Subscription Service.
8.2. Indemnification by Customer. Customer will (A) defend, indemnify and hold Company harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Company by a third party alleging that (i) the Customer Data or Customer's use of the Subscription Service (as opposed to the Subscription Service itself) infringes or misappropriate the intellectual property rights of, or has otherwise harmed a third party, or (ii) Customer Data is in breach or non-compliance of applicable law; or contains unlawful or tortious material including material that violates privacy rights or which disrupts the performance of Subscription Service or data contained therein; and (B) pay with respect to any such Claim all damages or amounts agreed to in settlement by the Customer.
8.3. Exceptions from Indemnification. Company will have no liability for any infringement or claim which results from: (a) use of the Subscription Service in combination with any non-Company-provided hardware, software, or data if such infringement or claim would not have occurred but for such combination; (b) Company’s development of any changes or modifications to the Subscription Service at Customer’s request or instruction; or (c) use of the Subscription Service in a manner prohibited under this Agreement, in a manner for which the Software was not designed, or in a manner not in accordance with the Documentation if such infringement or claim would not have occurred but for such use. Notwithstanding anything to the contrary including without limitation under clause 11.3 (Waiver and Cumulative Remedies), this clause states Company’s entire liability, and Customer’s sole remedy, with respect to any claim of infringement.
9. Limitation of Liability
9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER FOR THE SERVICE WHICH WAS THE SUBJECT OF THE CLAIM UPTO THE PRECEDING TWELVE (12) MONTH PERIOD.
9.2. Exclusion of Consequential and Related Damages. SAVE AS EXPRESSLY PROVIDED IN CLAUSE 10.3.1 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR THIRD PARTY CLAIMS, LOSS OF OR DAMAGE TO RECORDS OR DATA, ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so such exclusions may not apply.
10. General Provisions
10.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as expressly provided in this Agreement. There are no third-party beneficiaries to this Agreement.
10.2. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given and received upon: (i) personal delivery; (ii) three (3) business days after sending by registered or certified mail, return receipt requested, postage prepaid; (iii) two (2) business days after sending by email provided the sender does not receive an automated mailer daemon; or (iv) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt. All communications shall be sent to each party’s address specified in this Agreement (or such other address as such party may later specify in writing for such purpose). Notices to Company shall be addressed to the address [-] to the attention [-]. Notices to Customer are to be addressed to the address [-] to the attention [-].
10.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising or enforcing any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity or otherwise.
10.4. Severability; Section Headings. If any provision of this Agreement is determined in any proceeding binding upon the parties to be invalid or unenforceable, that provision shall be deemed severed from the Agreement, and the remaining provisions of this Agreement shall remain in effect. The section headings in this Agreement are solely for the convenience of the parties and have no legal or contractual effect.
10.5. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. For the sake of clarity the Parties agree that delay in the payment of amounts due and payable hereunder and the failure to maintain confidentiality, even if caused due to events beyond a Party’s reasonable control, shall not constitute a force majeure event.
10.6. Assignment. Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party; provided, however, that either party may without the prior consent of the other party assign all of its rights under this Agreement to: (a) its Affiliate; (b) a purchaser of all or substantially all of its stock or assets; or (c) a third party participating in a merger or other corporate reorganization in which the assigning party is a constituent corporation, provided that the scope of use of the Service is not increased thereby and except that Customer shall have no right to assign this Agreement to a direct Competitor of Company. This Agreement will be binding upon and inure to the benefit of the parties and their respective successor and permitted assigns. Any other purported attempt to do so is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.7. Governing Law. This Agreement shall be construed and governed exclusively by the laws of the State of Colorado, United States of America, without regard to its conflicts of laws. The United Nations Convention on the International Sale of Goods will have no application to this Agreement. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the other party. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of the City and County of Denver, Colorado.
10.8. Alternate Dispute Resolution; Attorney’s Fees. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by a qualified arbitrator mutually selected and agreed upon by the parties under the American Arbitration Association’s Commercial Arbitration Rules. The place of arbitration shall be Denver, Colorado and, pursuant to Section 11.7, Colorado law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of any fees and expenses under this Section 11.8 shall be divided equally between the Company and Customer. In any action or proceeding brought to enforce any provision of this Agreement, or where any provision is validly asserted as a defense, the successful party is entitled to recover reasonable attorneys’ fees in addition to any other available remedy.
11. Non-solicitation, Miscellaneous.
11.1. Non-solicitation. During the term of this Agreement and for one (1) year after its termination, neither party will solicit for employment or engagement any personnel, or hire or enter into a contract with any employee, consultant, or former employee of the other, without first obtaining such other party’s express, specific written consent, except for former employees or consultants whose employment or engagement has been terminated for over six (6) months.
11.2. Entire Agreement. This Agreement, including all exhibits, addenda hereto and all Statements of Work executed hereunder, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. For avoidance of doubt, emails with a typed name and/or signature block do not constitute signed writings. In the event of any conflict between the provisions in this Agreement and any annexure, exhibit or addendum hereto, or Statement of Work executed hereunder, the terms of such annexure, exhibit, addendum or Statement of Work shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Statements of Work) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.3. Counterparts. The Agreement or the SOWs may be executed electronically and in counterparts, which taken together shall form one binding legal instrument.