1. Company Services
1.1. Services.
1.1.1. Access. Subject to the terms and conditions of the Agreement, Company will make the Services available to Customer and Customer’s authorized users (each, a “User”) for Customer’s access and internal use during the service period set forth in the applicable Order (“Service Period”), either through the Platform (defined below) or an On-Prem Instance (defined below) as set forth in the applicable Order, by using commercially reasonable efforts to provide the Services. The total number of Users who are permitted access to and use of the Services shall not exceed the number of Users authorized to use the Services as set forth in the applicable Order (“Service Capacity”), except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the fees for the Services as set forth in the applicable Order (“Service Fees”) payable hereunder. Customer is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. Customer will make all Users aware of the provisions of the Agreement as applicable to such User’s use of the Services (or any component thereof) and shall cause Users to comply with such provisions. “Platform” means the hosted, cloud environment through which the Services are made available by Company.
1.1.2. Content. Access to certain content, including Output (as defined below), may be available through the Services (“Content”). Customer may use, download, and modify the Content for its internal use or for in accordance with the Agreement and any applicable Third-Party Terms of Service.
1.2. On-Prem. If any portion of the Services will be installed on machines operated by or on behalf of Customer as set forth in the applicable Order (“On-Prem Instance”), this Section 1.2 will apply to the Services in addition to the other terms and conditions of the Agreement.
1.2.1. On-Prem Instance. Customer is solely responsible for procuring, supporting, securing, connecting and maintaining any hardware, software, operating systems, networks, databases, connectivity, data center resources, telecom resources, or other systems or infrastructure needed to install and operate the Services or any other subject matter made available hereunder and Customer is solely responsible for procuring, supporting, securing, connecting and maintaining all of the foregoing, including as may be more specifically identified in the applicable Order and/or the documentation provided by or on behalf of Company (collectively, the “Customer Infrastructure”). Notwithstanding anything to the contrary, Company will have no responsibility with respect to any failure, malfunction, contaminants, power loss or interruption that is due in whole or in part to the Customer Infrastructure or Customer’s failure to procure, support, secure, connect or maintain adequate Customer Infrastructure, or for any security breach, loss of data, or for any injury, property damage, or similar event related to Customer Infrastructure. Additionally, Customer is solely responsible for providing VPN and firewall protection, antivirus protection, and intrusion monitoring with respect to the Customer Infrastructure (collectively, “Customer Security Measures”). Notwithstanding anything to the contrary, Company will have no responsibility with respect to any failure, contaminants or interruption that is due to the Customer’s failure to provide Customer Security Measures, or for any security breach, loss of data, or similar event related to the Customer Security Measures (or lack thereof).
1.2.2. Updates. Company will provide Customer with all bug fixes, error corrections, patches, or new versions of or to the On-Prem Instance, in each case that Company generally makes available to its customers without additional charge (collectively, “Updates”) as and when Company makes such Updates generally available to its customers. Customer acknowledges and agrees that Company is under no obligation to issue Updates and that the obligation to make available any Updates applies only to those Updates that Company commercially releases to its customers generally. Company will provide updated documentation reflecting Updates, as available. Customer shall implement all Updates within three (3) days of receiving notice that an Update is available.
1.2.3. Limitations. Notwithstanding anything to the contrary stated in the Agreement, Company is not obligated to provide Services if the problem or incident at issue resulted from any of the following: (a) modification of or damage to the On-Prem Instance (excluding Updates or other modifications made by Company); (b) failure of Customer Infrastructure or Customer’s failure to provide adequate Customer Infrastructure; (c) negligence of Customer or any User; (d) a cause or causes beyond the reasonable control of Company; (e) attempted maintenance by unauthorized persons; (f) Customer’s improper use or installation of the On-Prem Instance; or (g) use of other than the most recent version of the On-Prem Instance provided by Company, including any failure to install and use any Update.
1.3. Passwords. Customer is responsible for maintaining the confidentiality of its User passwords, IDs, and other credentials and login information (collectively, “Passwords”), and Customer agrees that Company has no liability with respect to the use of any Passwords. Customer acknowledges that Passwords are personal to each User, and Customer is responsible for ensuring that each Password is used only by the applicable User. Customer must notify Company immediately if Customer has reason to believe that the security of Customer’s account has been compromised or if any of the Services have been accessed by any unauthorized individuals.
1.4. Beta Services. From time to time, Company may provide Customer with the option to participate in early access programs with Company where Customer may be permitted to use alpha, beta, or pre-release services, products, features, and documentation (“Beta Services”) offered by Company. Notwithstanding anything to the contrary contained in the Agreement, Beta Services are not generally available and may contain bugs, errors, or defects. Accordingly, Company provides Beta Services to Customer “as is”, “where is”, and “with all faults”, and makes no warranties of any kind with respect to the Beta Services, nor does any representation, warranty, services level, or other obligation with respect to the Services described herein apply to the Beta Services. Company may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
1.5. Maintenance and Support. Company may conduct maintenance on the Services from time to time with prior notice to Customer. Subject to the terms and conditions of the Agreement, Company will use commercially reasonable efforts to provide Customer with reasonable technical support services during the Service Period. For
1.6. Third Party Providers. Portions of the Services (including the Content) may be provided through third-party providers, which may have a separate agreement with Customer or, if not, may impose certain restrictions or additional terms and conditions (“Third-Party Terms of Service”). If applicable, the Third-Party Terms of Service are incorporated into the Agreement by reference. In the event of conflict between the terms and conditions of the Third-Party Terms of Service and the terms and condition of the Agreement, the terms and conditions of the Third-Party Terms of Service will govern with respect to such portions. Customer agrees to abide by the terms and conditions of the Third-Party Terms of Service provided by Company, if applicable. Company disclaims any liability with respect to such portions of the Services. Customer agrees that such third-party providers are third-party beneficiaries of all terms applicable to them. Customer, at its sole expense, will defend, indemnify, and hold harmless the Company Parties from and against any and all Losses arising from any Claim resulting from or arising in connection with any alleged or actual violation of any Third-Party Terms of Service by or on behalf of Customer.
2. Restrictions
Except as expressly authorized by the Agreement, Customer may not (i) modify, disclose, alter, translate, or create derivative works of the Offerings (or any components thereof), (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Offerings (or any components thereof), (iii) use the Offerings to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions, (iv) copy, frame, or mirror any part or content of the Offerings, (v) build a competitive product based on the Offerings or service, or copy any features or functions of the Offerings, (vi) interfere with or disrupt the integrity or performance of the Offerings, (vii) attempt to gain unauthorized access to the Offerings or their related systems or networks, (viii) disclose to any unrelated third party any performance information or analysis relating to the Offerings, (ix) remove, alter, or obscure any proprietary notices in or on the Offerings including copyright notices, (x) disclose or make available Passwords that Company has provided to Customer or the Users, (xi) create or retain any copies of any Content, except to print or download insubstantial amounts of the Content as available through the Offerings’ intended use, (xii) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or create the source code of the Offerings or their structural framework (in whole or in part), or perform any process intended to determine the source code for the Offerings, (xiii) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Offerings or the functionality of the Offerings, (xiv) take any action that imposes an unreasonable or disproportionately large load on the Offerings, (xv) use the Offerings in any way that may violate any applicable law, rule, or regulation, for any purpose that is illegal in any way or that advocates illegal activity, or (xvi) cause or permit any User or third party to do any of the foregoing. Without limiting the generality of the foregoing, neither Customer nor any User may, or allow third parties to, (a) use any Output or any other Content, data, or other information received or derived from the Offerings to (I) directly or indirectly create, train, test, or otherwise improve any machine learning algorithms or artificial intelligence systems, (II) to develop foundation models or other large scale models that compete with Company or other features of the Offerings, (III) to mislead any person that Output from the Offerings was solely human generated, or (IV) in a manner that violates any documentation, Offerings usage guidelines, or other parameters or instructions of Company; or (b) intentionally manipulate the training data or fine-tuning procedures of Company or third-party technology to introduce vulnerabilities, backdoors, or biases, including through (I) inserting mislabeled or harmful data to elicit specific, damaging model responses, or (II) contaminating a substantial part of the training dataset. “Offerings” means the Platform or the On-Prem Instance, as applicable.
3. Fees and Payment Terms
3.1. Service Fees. Customer will pay, or cause to be paid, to Company the Service Fees in accordance with the payment terms set forth in the applicable Order. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order or otherwise requires the payment of additional fees (per the terms of the Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. The Service Fees do not include taxes. Unless otherwise set forth in the applicable Order, Company will invoice Customer or its payment agent on the frequency specified in Customer’s account portal for the Services in advance for the Service Fees, Customer will pay all invoiced amounts to Company within 30 days of the date of the invoice, and all payments must be made (i) in U.S. Dollars and (ii) using a valid credit card through the Customer’s account portal for the Services.
3.2. Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services, excluding only taxes based solely on Company’s net income. Notwithstanding any terms to the contrary in the Agreement, (i) Company will not be obligated to issue any refunds for Service Fees paid, and (ii) Company, at its sole discretion, may modify its pricing during any Service Period, provided that modifications will only be effective as of the following Service Period and that Company notifies Customer of such pricing modifications at least 90 days beforehand.
4. Term, Termination, and Effects of Termination
4.1. Term. If there is a trial period set forth in the Order Form (“Trial Period”), then the Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 4.3, continues for the Trial Period. Thereafter, unless Company provides written notice of its intent not to renew the Agreement at least 30 days before the end of the Trial Period, the Agreement continues through the Service Period, if any. Thereafter, unless terminated as set forth in Section 4.3 or otherwise provided in the Agreement, the Agreement will automatically renew for successive periods equivalent to the length of the Service Period (each period referred to as a Service Period) unless either party provides written notice of non-renewal no less than 45 days prior to the end of the then-current Service Period. If there is no Trial Period, then the Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 4.3, continues for the Service Period. Thereafter, unless terminated as set forth in Section 4.3 or otherwise provided in the Agreement, the Agreement will automatically renew for successive periods equivalent to the length of the Service Period (each period referred to as a Service Period) unless either party provides written notice of non-renewal no less than 45 days prior to the end of the then-current Service Period. “Term” as referenced in the Agreement means the total duration the Agreement in effect, subject to the provisions for termination and renewal as specified in this Section 4.1.
4.2. Suspension. Notwithstanding any terms to the contrary in the Agreement, Company may suspend use of the Offerings or Services (or any portion thereof) without liability if Company reasonably determines that (i) Customer fails to pay any undisputed Service Fees when due, (ii) Customer or any of its Users are in breach of Section 2, (iii) Customer’s or any User’s use of the Offerings, Services, or Content disrupts or poses a security risk to the Offerings or Services or to any other customer or vendor of Company, (iv) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Customer to access the Offerings or Services, or (v) Company is required by any applicable law to suspend the Offerings or Services.
4.3. Termination. Either party may terminate the Agreement, for cause, if the other party materially breaches the Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach. Company may terminate the Agreement, in whole or in part, upon 90 days’ written notice to Customer.
4.4. Effects of Termination. Upon any expiration or termination of the Agreement (i) all rights and licenses granted to Customer under the Agreement will immediately terminate, and (ii) Customer must promptly pay, or cause to be paid, to Company all amounts due and payable up to the effective date of termination of the Agreement, unless Customer terminates for cause pursuant to Sections 4.3 or 10.4. Notwithstanding any terms to the contrary in the Agreement, (a) Sections 1.2.1 (solely in the case that Section 1.2 applies to the Services), 1.3, 1.6n, 2, 3, 4.4, 5, 6, 7, 8, 9, 10, and 11 will survive any termination or expiration of the Agreement, and (b) no refunds will be issued except as otherwise provided in the Agreement.
5. Proprietary Rights
5.1. Customer Data. Company acknowledges that, as between Company and Customer and subject to the rights and licenses granted in the Agreement, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to non-public data provided by Customer and its Users to Company to enable the provision of the Services (“Customer Data”). Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license to Process the Customer Data and perform all acts with respect to the Customer Data as may be necessary or useful for Company to provide the Services to Customer. Customer represents and warrants to Company that it has obtained, and will maintain throughout the Term, all rights, licenses, and consents (including any required data-subject or third-party consents) necessary for (i) Customer’s provision of Customer Data to Company and the Services and (ii) Company to Process Customer Data (and any personal data contained therein) in accordance with the Agreement and any applicable documentation.
5.2. Input and Output. Customer acknowledges and agrees that Company may, through the Services or otherwise, Process Customer Data and other inputs provided by Customer and Users (collectively, “Input”), to cause the generation of output based on the Input (“Output”), to perform the Services for the benefit of Customer and maintain, support, and provide the Service. Customer represents and warrants that Customer has all rights, licenses, and permissions required to provide Input to the Services. To the extent permitted by applicable law, Customer owns all Output. Company hereby assigns to Customer all of Company’s right, title, and interest, if any, in and to Output. Customer is solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for each use case. For purposes of the Agreement, “Process” means to take any action or perform any operation or set of operations that the Services are now or hereafter capable of taking or performing on any documents, graphics, materials, or other data, information, and other content, including, without limitation, to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise generate, provide, or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
5.3. Company Analytic Data. Customer acknowledges and agrees that Company may monitor, collect, use, and store anonymous and aggregate statistics regarding use of the Offerings, Services, and/or any individuals/entities that interact with the Offerings or Services (including, without limitation, information concerning Customer Data, Input, Output, and other usage data derived from the foregoing) (collectively, “Company Analytic Data”). As between the parties and subject to the grants expressly set forth in the Agreement, Company owns all right, title, and interest in and to the Offerings, Services, and Company Analytic Data, together with any and all Intellectual Property Rights embodied in or related to the foregoing.
5.4. Reservation of Rights. Except as expressly provided in the Agreement, Company and its licensors retain all of its right, title, and interest in and to the Offerings, Services, and any other technology or materials developed by or for Company alone or jointly with others, or otherwise made available by Company to Customer under the Agreement, together with all Intellectual Property Rights in or to the foregoing, and no other rights are granted to Customer nor will Customer acquire any such rights, whether by implication, operation of law, or otherwise.
6. Confidentiality
6.1. Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to the Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, at the time of initial disclosure to the Receiving Party or, if the Disclosing Party makes an oral disclosure, the Disclosing Party, within 10 days of such oral disclosure, notifies the Receiving Party in writing that the information disclosed by the Disclosing Party should be treated as confidential/proprietary to the Disclosing Party. Notwithstanding the foregoing, Confidential Information will not include information that (i) is or becomes publicly available without breach of the Agreement through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or regulation or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that the Receiving Party (a) gives the Disclosing Party written notice of the Court Order promptly after receiving it, if permitted by applicable law or regulation; and (b) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 6, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
6.2. Obligations. The Receiving Party will maintain in confidence the Confidential Information during the Term and for the 5-year period commencing upon the effective date of termination of the Agreement, and will not use such Confidential Information except as expressly permitted in the Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations or exercising the Receiving Party’s rights under the Agreement. In addition, the Receiving Party will only disclose Confidential Information to its affiliates within Customer, directors, officers, employees, vendors and/or contractors who have a need to know such Confidential Information in order to perform their duties under the Agreement, provided such affiliates, directors, officers, employees, vendors and/or contractors are under an obligation to maintain the confidentiality of the Confidential Information. Each party agrees that the terms and conditions of the Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of the Agreement in confidence (i) to such party’s legal counsel, accountants, banks, financing sources, and their advisors, (ii) in connection with the enforcement of the Agreement or rights under the Agreement, (iii) in connection with an actual or proposed equity investment, merger, acquisition, or similar transaction, or (iv) to governmental or regulatory authorities in connection with examinations or audits.
7. Representations and Warranties
Each party represents and warrants that (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (ii) it has full corporate power and authority to execute, deliver, and perform its obligations under the Agreement and the Agreement, (iii) the person signing the Order on its behalf has been duly authorized and empowered to enter into the Agreement, and (iv) the Agreement is valid, binding, and enforceable against it in accordance with its terms.
8. Disclaimer
EXCEPT AS SET FORTH IN SECTION 7, THE SERVICES AND OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE ACCESS TO OR USE OF THE SERVICES OR OFFERINGS WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (II) THE SERVICES OR OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS, (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BE LOST, DAMAGED, OR CORRUPTED, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR COMPANY WILL DETECT EVERY BUG IN THE SERVICES OR OFFERINGS, (V) THE SERVICES OR OFFERINGS OR THE SERVER(S) THAT MAKE THE SERVICES OR OFFERINGS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (VI) THIRD-PARTY DISRUPTIONS AND SECURITY BREACHES OF THE SERVICES OR OFFERINGS WILL BE PREVENTED.
9. Indemnification
9.1. Indemnification by Company. Company, at its sole expense, will defend Customer, its affiliates, and its and their respective directors, officers, employees, consultants and agents (“Customer Parties”) from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer Parties from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) (“Losses”) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Company, in each case resulting from or arising in connection with (i) the Offerings (solely in the form delivered to Customer and excluding any Content) infringing any Intellectual Property Rights (as defined in Section 10.4) of any third party or (ii) any violation of applicable law or regulation by or on behalf of Company, provided that Customer was not also involved in such violation.
9.2. Indemnification by Customer. Customer, at its sole expense, will defend Company, its affiliates, and its and their respective directors, officers, employees, consultants and agents (“Company Parties”) from and against any third-party Claim, and indemnify the Company Parties from any related Losses, resulting from or arising in connection with (i) Customer Data or use of any Content, (ii) any breach of Section 2, or (iii) any violation of applicable law or regulation by or on behalf of Customer, provided that Company was not also involved in such violation.
9.3. Procedure. The indemnifying party’s indemnification obligations under this Section 9 are conditioned upon the indemnified party (i) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of it, (ii) granting the indemnifying party the option to solely control the defense (including the right to use its own counsel) and settle the Claim (except that the indemnified party must approve any settlement that requires an affirmative obligation of the indemnified party), and (iii) providing reasonable cooperation to the indemnifying party and assistance in the Claim’s defense or settlement.
10. Limitation of Liability
10.1. Consequential Damages Waiver. EXCEPT FOR (I) BREACHES OF SECTIONS 2 OR 6, (II) INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (III) A PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 9, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES IN ADVANCE.
10.2. Liability Cap. EXCEPT FOR (I) BREACHES OF SECTIONS 2 OR 6, (II) INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, (III) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, OR (IV) A PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 9, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SERVICE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE SERVICE PERIOD WITHIN WHICH THE DAMAGES OCCURRED.
10.3. Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THE AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.4. Intellectual Property Rights. In the event of any claim brought by a third party that all or a portion of the Offerings infringes, misappropriates, or otherwise violates any Intellectual Property Right of a third party or if Company believes such a claim may be brought, Company may, in its sole discretion (i) replace the applicable Offerings with substantially similar products or services that are reasonably acceptable to Customer, (ii) modify the applicable Offerings in a manner reasonably acceptable to Customer, (iii) procure for Customer the right to continue using the Offerings, or (iv) terminate the Agreement upon 30 days written notice to Customer. If the proposed replacement or modified Offerings under Sections 10.4(i) and (ii) above are not acceptable to Customer, Customer may terminate this the Agreement upon written notice of termination to Company, and Company shall be refund any fees that were prepaid for the applicable quarter, prorated to the date of termination. This Section 10.4 sets forth Customer’s sole remedy and Company’s sole obligation for the claims described in this Section 10.4. For the purpose of this the Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations, for any of the foregoing.
11. General Provisions
11.1. Governing Law and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Connecticut, without resorting to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in Connecticut (the “Chosen Courts”) in any litigation arising out of or relating to the Agreement, agrees that all claims in respect of any such litigation will be heard and decided only in any such Chosen Court, waives any claim of inconvenient forum or other challenge to venue in any such Chosen Court, and agrees not to bring or maintain any such litigation before any tribunal other than the Chosen Courts (except, for clarity, in any proper appeal from a Chosen Court).
11.2. Audit. During the term of this Agreement and for two years afterward or such longer period as required by applicable law, Customer will keep true, accurate, and complete records relating to its performance of this Agreement, including records to show compliance with its obligations under this Agreement. While the Agreement is in effect, Company may, by itself or through an independent third party, audit Customer’s use of the Services to verify Customer’s compliance with this the Agreement. Customer agrees to provide reasonable access to Customer’s facilities and non-confidential records for purposes of conducting these audits.
11.3. Feedback. Notwithstanding any terms to the contrary in the Agreement, any suggestions, comments, or other feedback provided by Customer to Company with respect to Company, Offerings, or the Services (collectively, “Feedback”) will constitute Confidential Information of Company. Further, Company will be free to use, reproduce, and otherwise exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind.
11.4. Force Majeure. Neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fires, storms, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
11.5. Electronic Communications. Company may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to Company. Company’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Customer agrees to do business electronically with Company and to receive electronically all current and future notices, disclosures, communications, and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.
11.6. Assignment. Neither the Agreement nor any right or duty under the Agreement may be transferred, assigned, or delegated by Customer, by operation of law or otherwise, without the prior written consent of Company, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Company may freely transfer, assign, or delegate the Agreement or its rights and duties under the Agreement. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
11.7. Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under the Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.8. Severability. If any provision of the Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of the Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by the Agreement are not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.