MASTER LICENSE AND SERVICES AGREEMENT
BEFORE USING SPORTSDIGITA, LLC’S SUBSCRIPTION SERVICES (AS DEFINED BELOW), PLEASE READ THESE MASTER LICENSE AND SERVICES AGREEMENT TERMS (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER”) AND SPORTSDIGITA, LLC, IDENTIFIED AS “SUPPLIER” THEREIN (“SUPPLIER”), PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE SUBSCRIPTION SERVICES (THE “ORDER FORM”). THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SUPPLIER (“AGREEMENT”), EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY SUPPLIER AND CUSTOMER OF THE ORDER FORM (“EFFECTIVE DATE”). IF YOU ARE AN EMPLOYEE OR OTHER REPRESENTATIVE ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER, YOU HEREBY REPRESENT AND WARRANT TO SUPPLIER THAT YOU ARE AUTHORIZED TO ENTER INTO THESE TERMS ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
Supplier reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Terms and to impose new or additional rules, policies, terms, or conditions on Customer’s use of the Subscription Services. Supplier will communicate changes to these Terms by posting the new version of the Terms on its website at https://www.thedigideck.com/terms/ or as otherwise determined by Supplier in its sole discretion, or as otherwise required by applicable law, at which time such updated Terms will be immediately effective. Customer’s continued use of the Subscription Services after such communication of changes to these Terms will constitute Customer’s acceptance of any and all such changes.
1. DEFINITIONS
1.1. Account Credentials. “Account Credentials” are the user name and password set up by each individual Authorized User as defined below.
1.2. Authorized Users. “Authorized Users” means Customer’s employees and other designated third parties such as agents, consultants, and contractors who are authorized by Customer to use the Subscription Services up to the number of Authorized Users specified on an Order Form. Each individual employee or other designated third party is considered one Authorized User.
1.3. Confidential Information. “Confidential Information” is as defined in Section 6 herein.
1.4. Customer Content. “Customer Content” means Customer’s (i) audio and video files and images created as a result of Customer’s license use of the Subscription Services, (ii) .pdf versions of all Master Decks created during the Subscription Term, and (iii) copies of all Customer’s analytics data stored within Supplier’s database.
1.5. Documentation. “Documentation” means all generally-available written, published materials that are accessible at https://support.sportsdigita.com/, and explain or facilitate the use of the Subscription Services, including, without limitation, user manuals, standard operational manuals or instructions, training materials, programming manuals, system manuals, and specifications. Such Documentation may be modified by Supplier from time-to-time, provided that any such changes shall not materially diminish the features, functionality, and security of the Subscription Services during the then-current Subscription Term.
1.6. Fees. “Fees” are the fees to be paid by Customer in connection with the Subscription Service and other Services for the duration of the Subscription Term.
1.7. Hosting Services. “Hosting Services” includes the hosting of Customer’s Digideck and related assets. Hosting Services includes use of a reasonable amount of storage and bandwidth and are included in the Subscription Fees for the Software. Notwithstanding the foregoing, Supplier reserves the right, upon notice to Customer, to set commercially reasonable storage and bandwidth limits. Customer may purchase the use additional storage and bandwidth for an additional agreed upon Subscription Fee.
1.8. Malicious Code. “Malicious Code” means any viruses, worms, spyware, poison pills, time bombs, backdoors, drop dead dates or other destructive or disabling devices that are intended to do harm and that are within the Software upon its delivery to Customer.
1.9. Master Deck. ”Master Deck” is defined on an Order Form.
1.10. Order Form. “Order Form” is a written purchase document pursuant to which Supplier agrees to provide and Customer agrees to purchase specified Subscription Services, or components thereof, from Supplier from time-to-time.
1.11. Services. “Services” are (a) the creative and set up services package purchased by Customer, (b) any fixed fee custom design services purchased by Customer, (c) Training, (d) Hosting Services, and/or (e) custom software development, all as more fully-described on an Order Form.
1.12. Software. “Software” is the Digideck platform software in object code format and Supplier API, if applicable, licensed on a subscription basis during the Subscription Term as part of the Subscription Services, and as more fully-described on each Order Form. The term “Software” also includes the Documentation, and any updates, upgrades, enhancements, or fixes to the Software and Documentation that are made generally available by Supplier to its customers from time to time.
1.13. Subscription Term. “Subscription Term” means the period identified in an Order Form during which Customer is entitled to use the Subscription Service.
1.14. Subscription Service. “Subscription Service” means the products and services made available to and purchased by Customer pursuant to this Agreement on a subscription basis and as identified on each Order Form, specifically, one or more of the following, access to the Software, Support, and Services.
1.15. Support. “Support” means the maintenance and technical support provided by Supplier with respect to the Software, as described in Section 4 herein.
1.16. Training. “Training” shall mean (i) the telephone and web demo training Supplier may provide to Customer and its Users, and (ii) any additional onsite training Customer elects to purchase, all as more fully-defined in Section 5 herein.
2. LICENSE GRANT; OWNERSHIP
During the Subscription Term specified on the Order Form, Supplier grants to Customer a worldwide, non-exclusive, revocable, non-transferable, non-sublicenseable right and license to use, copy, load, run, have run, and display the Software (collectively the “Use”). The Use includes the right, subject to the conditions and restrictions set forth herein and Supplier’s Privacy Policy located at https://www.thedigideck.com/privacy/ to use the Subscription Services, and to access to a specified number of Master Decks . Customer may use the Subscription Services to prepare additional Master Decks and allow additional Authorized Users access for an additional Subscription Fee. Incremental Authorized Users and Master Deck licenses purchased during a Subscription Term will have a Subscription Term that is co-terminus with the Subscription Term of previously purchased Master Deck(s) and Authorized Users licenses and Fees shall be prorated through the expiration of such Subscription Term. Authorized Users shall use the Subscription Services solely for Customer’s business purposes, subject to the restrictions set forth herein. The Subscription Services may be accessed by the number of named Authorized Users licensed by Customer as set forth in the Order Form. Customer represents and warrants that it shall: (i) be responsible for ensuring the security and confidentiality of all Account Credentials and passwords; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services; (iii) notify Supplier promptly of any unauthorized use of the Subscription Services or any breach, or attempted breach, of security of the Subscription Services. Duplicating or sharing Account Credentials among multiple users is strictly prohibited.
Customer grants Supplier an ongoing right (a) to use Customer’s name or logo in customer lists and marketing materials to communicate that Customer utilizes the Subscription Services; and (b) to use Customer’s Digideck for marketing and promotional purposes. If Supplier intends to disclose information about Customer’s purchase(s) (such as dollar amount of sale, project timelines, or project objectives) in conjunction with use of Customer’s name, logo, and/or Digideck, then Supplier will obtain Customer’s prior written approval (email sufficient).Customer shall not (i) access or use any portion of the Subscription Services except as expressly licensed to Customer; (ii) disassemble, decompile or otherwise reverse engineer all or any portion of the Software; (iii) use the Subscription Services for any unlawful purposes; (iv) export the Software, or allow access to the Software in violation of applicable laws and this Agreement; (v) except as permitted in this Agreement, sublicense, relicense, distribute, disclose, rent or lease the Software, or any portion thereof, for third party use; or, (vi) modify, adapt or use the Software to develop any software application, whether intended for resale or otherwise, which uses the Software in whole or in part.
Supplier shall make the Subscription Service available to Customer pursuant to the terms and conditions set forth in this Agreement and any Order Form executed by the parties from time-to-time.
Except as otherwise agreed in this Agreement, no one shall construe this Agreement to convey or otherwise transfer title to any proprietary rights in the Subscription Services to Customer. Notwithstanding anything set forth in this Section 2 to the contrary, Customer shall at all times exclusively own and have all rights, title and ownership in its Customer Content it uses to create its Master Deck and neither Supplier nor any other person shall have any right, title, license or other interest in Customer’s Content.
3. CUSTOMER OBLIGATIONS.
Unless otherwise contemplated in the Agreement, Customer shall: (i) be responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of the content provided by Customer to Supplier for the performance of Services and use with the Software; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service; and (iii) comply with all applicable local, state and federal laws in using the Subscription Service. Customer acknowledges and agrees that timely performance of its obligations set forth in this Agreement are required for the provision of the Subscription Service and other Services by Supplier. In the event that Customer is delayed in its performance of obligations, Supplier shall provide notice to Customer of the impact to the timelines specified in an Order Form. Customer understands that any delays by it in the performance of its obligations may result in additional Fees and expenses and/or a modification of the timeline set forth herein.
A project related to Services purchased is considered dormant if Customer causes any undue delays that extend past thirty (30) days from the last update. Customer shall be subject to a dormancy Fee of up to $1,000 if a project is considered dormant.
4. SUPPORT
Support related to the Subscription Services is included in the Fees paid for use of the Subscription Services during the Subscription Term and shall be provided in accordance with the policy set forth at https://www.thedigideck.com/support-policy. Such Support policy may be modified by Supplier from time-to-time, provided that any such changes shall not materially diminish Support during the then-current Subscription Term.
5. TRAINING
Upon delivery of the Subscription Service, or earlier if appropriate, Supplier will, if ordered by Customer, provide Training to Customer and its Authorized Users on the use of the Subscription Services. Supplier will conduct Training at times agreed upon by the parties and as described in the Order Form. Fees for Training are non-refundable. Customer may cancel Training at any time prior to the day on which it was to have been conducted. The parties will cooperate in good faith to reschedule the Training. Customer will compensate Supplier for any resulting unrecoverable out-of-pocket expenses in the event of the cancellation.
6. CONFIDENTIALITY
As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Supplier’s Confidential Information includes, without limitation, information related to its products and services and the terms of this Agreement.
Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.
Each party agrees that it shall use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Both parties will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Both parties agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.
In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both parties shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
7. CUSTOMER CONTENT
7.1 Personal Information. Confidential Information and Customer Content may include information that identifies, relates to, describes, is reasonably capable of being associated with or linked to a particular individual, whether directly or indirectly (“Personal Information”). Customer is responsible for the lawfulness of any such Personal Information and the receipt, use, and processing of it under the Agreement. Customer represents and warrants that, where it provides Personal Information to Supplier or requests Supplier collect or process such information, it (1) has complied with any applicable laws relating to the collection or provision of such information, (2) possesses any consents, authorizations, rights and authority required to transfer or permit Supplier to collect, receive, or access any Personal Information for the Subscription Services, and (3) to the extent required by applicable law, informed the individuals of the possibility of Supplier using their Personal Information on Customer’s behalf and in accordance with its instructions.
7.2 California Consumer Privacy Act. The parties acknowledge and agree that Supplier may receive personal information (as defined by the California Consumer Privacy Act (“CCPA”)) from Customer pursuant to this Agreement for a business purpose. Supplier shall not sell any such personal information. Supplier shall not retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of performing the Subscription Services for Customer pursuant to this Agreement. It is Customer’s sole responsibility to notify Supplier of any requests from consumers (as defined in the CCPA) seeking to exercise rights afforded in the CCPA with regard to personal information received or processed in connection with the Subscription Services. Supplier agrees to provide reasonable cooperation to Customer in connection with such requests.
7.3 European Union and United Kingdom General Data Protection Regulation. If and to the extent Customer submits to Supplier personal data (as that term is defined under the General Data Protection Regulation (“GDPR”)) of individuals located in the European Economic Area or United Kingdom, the Data Processing Addendum available at https://www.thedigideck.com/dpa/ as may be updated by Supplier from time-to-time (the “DPA”), is hereby incorporated into this Agreement unless Customer has signed a standalone Data Processing Agreement, in which case such terms shall control. The Customer agrees to complete and execute the Standard Contractual Clauses appended to the DPA, as may be necessary under the GDPR to transfer personal data from the EEA or UK to other countries, as may be necessary for use of the Subscription Services. It is Customer’s sole responsibility to notify Supplier of requests from data subjects related to the modification, deletion, restriction and/or objection of personally data. Customer represents and warrants that any processing of personal data in accordance with its instructions is lawful. Customer understands that Confidential Information and Customer Content will be stored on servers located within the United States and hereby consents to such storage.
8. PRICING & FEES
Customer agrees to pay Supplier the Fees associated with Customer’s use of the Subscription Services as set forth in each Order Form. UNLESS EXPRESSLY OTHERWISE PROVIDED HEREIN, OR REQUIRED BY APPLICABLE LAW, ALL FEES ARE NONREFUNDABLE AND NONCANCELABLE. For the avoidance of doubt, if the parties agree to allow payments in installments, it is expressly understood and agreed that such payments are committed for the entirety of the Subscription Term specified in the applicable Order Form.
In the event Customer opts not to renew at the end of the contracted Subscription Term, but opts to renew at a later date, a reactivation fee shall apply.
Upon each annual renewal following the completion of the original Subscription Term, the subscription and services Fees will be subject to an increase up to then-current pricing.
Any Services, unless otherwise set forth on an Order Form, must be used within 12 months immediately following issuance of an invoice for the Services.
9. INVOICING; PAYMENT; TAXES.
Supplier will invoice Customer upon execution of an Order Form. Supplier’s invoice will identify the Subscription Service and components thereof, the Customer’s purchase order number, if applicable, and the Fees. Fees for the Services are due immediately upon receipt in order to initiate Supplier’s performance of the Services. Customer will be responsible for all reasonable, pre-approved out-of-pocket expenses related to Supplier’s performance of the Services. Fees for the Subscription Service will be billed annually, in advance upon each annual anniversary of the beginning of the Subscription Term, as referenced on the Order Form, during a Subscription Term. Customer shall pay Supplier for any Fees for the use of the Subscription Service within 30 days of the date of Supplier’s undisputed invoice. Late payments of any amounts due to Supplier hereunder shall be subject to interest at an annual percentage rate equal to the lesser of eighteen percent (18%) per year or the maximum rate permitted by law from the original due date until paid in full. Supplier shall recover any out-of-pocket expenses incurred in collecting payments due, including, without limitation, any bank charges for returned checks, collection agency fees, and any legal expenses, including court costs and attorneys’ fees.
Customer may make payments to Supplier via (a) company check, (b) ACH through Supplier’s online system, or (c) credit card which will be subject to a 3% convenience fee, unless otherwise prohibited by law.
Customer shall be responsible for the payment of all applicable taxes, customs fees and regulatory certifications, local tax withholdings, inspection fees mandated by the country of export, courier or shipping fees, and duties properly due and payable related to the Subscription Services, with the exception of taxes imposed on the income of Supplier. Fees do not include any sales, use, excise, transaction, or other similar taxes. If such taxes are applicable, Supplier will separately state them on the invoice. All invoices and payments for Order Forms will be in USD, unless otherwise stated on an Order Form.
10. LIMITED WARRANTIES.
Supplier warrants to Customer that during the Subscription Term the Software will not contain Malicious Code and the Software will substantially conform in all material respects to, and perform substantially in accordance with, the Documentation. If Customer believes the warranty stated in this Section has been breached, Customer must notify Supplier in writing of the breach within thirty (30) days of the date the warranty was allegedly breached, and Supplier will, in Supplier’s sole reasonable discretion, (i) promptly correct the non-conformity, at Supplier’s expense, or (ii) terminate this Agreement and refund a prorated amount of the Fees prepaid by Customer for use of the Software from the date on which Customer notified Supplier in writing of any such breach of warranty. Unless otherwise prohibited by applicable law, this is Customer’s sole and exclusive remedy.
Supplier warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services. If Customer believes the warranty stated in this Section has been breached, Customer must notify Supplier in writing of the breach within thirty (30) days of the date the Services were performed, and Supplier will promptly correct or re-perform the Services, at Supplier’s expense. Unless otherwise prohibited by applicable law, this is Customer’s sole and exclusive remedy.
EXCEPT AS MENTIONED IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT SUPPLIER DOES NOT MAKE ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
11. INDEMNIFICATION
11.1 Supplier Indemnification. Subject to Section 11.3 below, Supplier agrees to defend any third party claim or action brought against Customer to the extent based on a claim that the Subscription Services infringe any U.S. patent, copyright, trade secret, database right, or other intellectual property or proprietary right of any third party; provided, however, that Supplier shall have no obligation to indemnify Customer for claims pursuant to this paragraph to the extent that such claims arise out of: (a) Customer Content; (b) use of the Subscription Services in combination with non-Supplier software, data or equipment if the infringement would not have existed but for such use or combination; or (c) any modification or derivation of the Subscription Services not specifically authorized in writing by Supplier.
If the Subscription Services, or any component thereof, is finally adjudged to so infringe, or in Supplier’s opinion is likely to so infringe, Supplier shall, at its option, either: (i) procure for Customer the right to continue using such infringing component(s), (ii) modify the Subscription Services to make it noninfringing or replace any infringing component with a functionally equivalent component that does not infringe, or (iii) refund a prorated portion of any prepaid Fees paid for the use of the Software as of the effective date of termination. The foregoing states the entire liability of Supplier and the exclusive remedy for Customer relating to infringement or claims of infringement by the Subscription Services.
11.2 Customer Indemnification. Subject to Section 11.3 below, Customer agrees to indemnify, defend, and hold Supplier harmless for any third-party claim or action brought against Supplier to the extent based on (i) Customer’s alleged breach of Sections 2 or 7.1, and (ii) claim that Customer Content infringes any U.S. patent, copyright, trade secret, database right, or other intellectual property or proprietary right of any third party. Customer agrees to pay any settlements that Customer agrees to in a writing signed by an authorized officer of Customer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
11.3 Procedures. Each party’s indemnification obligations are conditioned on the indemnified party: (a) providing the indemnifying party with prompt written notice of any claim, provided that the failure to provide such notice shall only limit the indemnifying party’s obligation to indemnify to the extent that the failure prejudices the indemnifying party in its defense of the claim; (b) granting the indemnifying party the sole control of the defense or settlement of the claim; and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. The indemnifying party shall not, without the prior written agreement of the indemnified party, agree to any settlement of a claim that does not release the indemnified party from all liabilities and obligations with respect to such claim or imposes injunctive or other equitable relief against the indemnified party or involves an admission of fault or wrongdoing by the indemnified party.
12. EXCLUSIONS/LIMITATIONS OF LIABILITY
FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, SUPPLIER WILL IN NO EVENT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE FOR BUSINESS INTERRUPTION, LOST REVENUE, PROFITS, OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. IN NO EVENT WILL SUPPLIER’S LIABILITY TO CUSTOMER EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE PREVIOUS 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO THE DAMAGES.
13. TERM & TERMINATION
Unless otherwise set forth on an Order Form, the Subscription Term will be renewed automatically for successive one (1) year terms unless written notice of non-renewal is given by either party at least thirty (30) days prior to the expiration of the then-current Subscription Term, or unless otherwise earlier terminated as provided herein.
Customer may terminate this agreement for convenience during the then current Subscription Term, however, Customer shall not be entitled to any refund of prepaid Fees and any unpaid Fees for the entirety of the committed Subscription Term shall become immediately due and payable. Should Supplier terminate this agreement for convenience prior to the end of the then current Subscription Term, Supplier will refund to Customer a pro rata refund of any prepaid fees as of the effective date of the termination.
With respect to a breach if Customer fails to pay any Fees by their due date, Supplier has the right, without prejudice to any other rights that it has in law, without liability, at its sole discretion, to suspend or restrict access to the Subscription Services. If the Subscription Services have been restricted or suspended, and Customer is still within the agreed upon Subscription Term, the Subscription Services will be restored within one (1) business day after receipt of overdue payments. With respect to all other material breaches by a Party hereunder, upon written notice, the non-breaching Party may terminate this Agreement if the other Party is in material breach of this Agreement and fails to cure such breach within 30 days of the non-breaching Party providing written notice of the breach.
A Party may also terminate this Agreement immediately upon written notice if the other Party; (a) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership; (b) is insolvent, unable to pay its debts as they become due, makes an assignment for the benefit of creditors or takes advantage of any Applicable Law for the benefit of debtors; or (c) ceases to conduct business for any reason on an ongoing basis, leaving no successor in interest.
14. INSURANCE.
In connection with providing the Subscription Services to Customer in this Agreement, Supplier agrees to maintain insurance with financially sound and reputable insurance companies in such amounts and against such risks as is customarily carried by responsible companies/firms in Supplier’s industry engaged in similar businesses and in similar geographic areas. At a minimum, during the term of this Agreement, Supplier agrees to maintain the following insurance levels per occurrence: Workers Compensation at statutory limits, Employers Liability at US$1,000,000, Comprehensive General Liability at US$2,000,000, Professional (Errors & Omissions) Liability at US$1,000,000 and Cybersecurity at US$5,000,000 (or comparable amounts in other currencies). If Customer reasonably requests, Supplier agrees to provide Customer with a summary of its insurance coverage or a copy of a certificate of insurance as it relates to providing the Subscription Services to Customer.
15. GENERAL PROVISIONS.
15.1 SEVERABILITY. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect.
15.2 GOVERNING LAW. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the applicable laws of the State of Minnesota, excluding its conflicts of law rules, and any action will be commenced exclusively in a state or federal court situated within Hennepin County, Minnesota. Customer and Supplier irrevocably submit to the jurisdiction and venue of any such court for such purpose. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
15.3 ENTIRE AGREEMENT. This Agreement, along with the Order Form and DPA, if applicable, sets forth the entire agreement and understanding between Supplier and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or agreements (including non-disclosure or confidentiality agreements), whether oral of written, regarding the same subject matter. Supplier does not accept, expressly or impliedly, and rejects and deems deleted any additional or different terms or conditions that Customer presents, including, but not limited to, any terms or conditions contained on Customer’s purchase order, added terms, or other such document, or established by trade usage or prior course of dealing. In the event of possible conflict or inconsistency between such documents, the conflict or inconsistency shall be resolved by giving precedence in the following order: (1) the terms of this Agreement; (2) Orders; (3) all other statements of work or other purchase documents.
15.4 WAIVER. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by a party will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
15.5 HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
15.6 SURVIVAL. Notwithstanding this Agreement termination, those obligations which by their nature are intended to survive such expiration or earlier termination shall survive including without limitation, the Sections titled “Indemnification”, “Confidentiality”, “Exclusions/Limitation of Liability”, “Term & Termination”, “License Grant; Ownership”, “Waiver”, “Governing Law”, “Severability”, and “Entire Agreement”.
15.7 NO JOINT VENTURE. This Agreement shall not be construed as creating any partnership, joint venture or agency relationship between Supplier and Customer. Neither party shall have the authority to obligate or bind the other in any manner.
15.8 ASSIGNMENT. Neither party can assign its rights or obligations under this Agreement without the other’s prior written consent. However, prior written consent is not required if Supplier assigns this Agreement, or portion thereof, to one of its affiliates or to a third party successor-in-interest. This Agreement is binding upon the parties’ respective successors and permitted assigns.
15.9 NO THIRD PARTY BENEFICIARIES. No third-party beneficiaries are intended or shall be construed as created by this Agreement.
15.10 EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the Software and Documentation except as authorized by United States law and the applicable laws of the jurisdiction in which the Software and Documentation were obtained. In particular, but without limitation, the Software and Documentation may not be exported or re-exported (i) into any U.S. embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software and Documentation, Customer represents and warrants it is not located in any such country or on any such list.
15.11 NOTICE. All notices, consents, and approvals hereunder shall be in writing and shall be deemed to have been given and effective upon: (a) personal delivery; (b) the day of receipt as shown by a nationally recognized express carrier; or (c) the day of confirmed receipt of email from the receiving party
