This Software & Services Subscription Agreement (this “Agreement”), by and between Parasense Inc. (“Parasense”), and yourself (“Subscriber”) and governs the terms and conditions pursuant to which Subscriber may access and use the Parasense platform and associated services.
TERMS AND CONDITIONS OF SERVICE
Parasense has developed, offers and maintains a proprietary, software-based service providing refrigerant, energy and associated equipment monitoring and management via remote data collection. This includes without limitation access to, and use of, the proprietary Parasense software, on a remotely hosted basis, through a web browser (as detailed below, the “Subscription Services”), and associated implementation and services, as further detailed in Exhibit A.
Subscriber desires to obtain access to the Subscription Services for its personnel and authorized third-party subcontractors (as further described below, “Authorized Users”) at “Sites” (as defined herein) and Parasense is willing to make access to the Subscription Services available to Subscriber’s Authorized Users at the Sites subject to the terms and conditions set forth below, and the Order to which these Terms are attached (collectively, this “Agreement”).
Therefore, the parties agree as follows with the intent to be legally bound:
1 SUBSCRIPTION SERVICES
1.1 License Grant. Parasense grants to Subscriber and its Authorized Users a non-exclusive, revocable, license to access remotely the Subscription Services solely on a remotely hosted basis and solely for its Authorized Users at Sites authorized as set forth in Section 2.1 below. Subscriber accepts such access, on behalf of itself and its Authorized Users on a per Site basis, subject to the terms and conditions set forth in this Agreement. Subscriber is entitled only to those rights with respect to the Subscription Services and Software as are expressly granted by this Agreement. Any rights that are not expressly granted by this Agreement shall not be implied.
1.2 Description of the Services. The Subscription Services hereunder consist of access to the proprietary Parasense software and functionality, along with any updates or enhancements that Parasense may, in its discretion, make available to Subscriber in connection with this Agreement, all on a remote, hosted basis, as detailed on Exhibit A attached hereto and incorporated by reference herein (the “Subscription Services”). Subscriber expressly acknowledges that Parasense reserves the power, in its sole discretion, to engage third party contractors and sub-contractors to provide to Subscriber some or all Subscription Services hereunder on Parasense’s behalf. Parasense reserves the right to alter or modify the Subscription Services without notice to the Subscriber. Any such alterations or modifications to the Subscription Services shall be governed by the terms of this Agreement and shall automatically become part of the “Subscription Services” hereunder.
1.3 Access. Subscriber’s rights hereunder, and access to the Subscription Services: (i) are non-assignable, non-transferable, non-sublicenseable; (ii) are strictly limited to Authorized Users at the Sites authorized and paid for as set forth herein; and (iii) are strictly limited to Subscriber’s internal business purposes of refrigerant and energy management. As between Parasense and Subscriber, Parasense shall be solely responsible for arranging Internet connectivity to/from the data center(s) from which the Subscription Services will be hosted. Likewise, as between Parasense and Subscriber, Subscriber shall be responsible for arranging Internet connectivity to/from the network and workstations of Authorized Users used to access the Subscription Services and Parasense shall not have responsibility, obligation or liability with respect to the procurement and/or maintenance of such Authorized User connectivity.
1.4 Service Level Commitment. Parasense agrees to provide Subscription Services in accordance with a service level commitment of 99.5% uptime during each calendar month during the term of this Agreement, excluding scheduled maintenance times. Test environments and training accounts are expressly excluded from Parasense’s service level commitment.
2 SUBSCRIPTION FEES
2.1 Fees. Unless otherwise detailed on the Order to which these Terms are attached, Subscriber shall pay to Parasense the fees (the “Fees”) for the Subscription Services in advance, as further set forth on Exhibit B, for all of the facilities of Subscriber that are specifically and expressly listed on Exhibit B (the “Sites”). All Fees are non-refundable once paid. Subscriber shall be authorized to use the Subscription Services only for the Sites. Sites may be added hereafter for additional Fees upon mutual agreement of the parties.
2.2 Invoicing. Unless otherwise agreed to in writing by the parties, Parasense shall invoice Subscriber for amounts due for Subscription Services and such invoices shall be due net thirty (30) calendar days of receipt without set-off or holdback. Parasense may suspend or terminate access to the Subscription Services, or all or part of the Subscription Services, where payment is overdue until such time as the overdue amounts are paid in full. Parasense may add the cost of reasonable attorneys’ fees required to collect on the unpaid balance of an invoice.
2.3 Taxes. All fees quoted and payable under this Agreement exclude taxes. Subscriber will be responsible for, and shall reimburse Parasense for, any applicable sales, service and other taxes (excluding taxes on Parasense’s income) levied upon the performance of services under this Agreement.
3.1 Suitability. Subscriber shall have sole responsibility for determining the suitability, appropriateness, relevance of the Subscription Service for itself and Authorized Users.
3.2 Authorized Contact and Administrator. Subscriber shall appoint a qualified staff member or other representative to act as its authorized contact (“Authorized Contact”) for the Subscription Services to be provided hereunder. Subscriber’s Authorized Contact shall be authorized to act as the principal contact between Subscriber and Parasense in connection with the performance of such Subscription Services. Subscriber shall also designate a qualified staff member to administer access to, and use of, the Subscription Services by Authorized Users (the “Administrator”). The Authorized Contact and the Administrator may be the same person, but may also be different individuals, at the Subscriber’s discretion.
3.3 Authorized Users. Subscriber shall have sole responsibility for deciding which of its Authorized Users will be granted access rights to the Subscription Service to act on behalf of Subscriber to enter and access Subscriber Data in and through the Subscription Service. Individuals eligible to be Authorized Users consist solely of: (a) Subscriber’s directors, officers and employees; and (b) Subscriber’s contractors and sub-contractors relevant to refrigerant and energy management
(a) Subscriber agrees that it is solely responsible for ensuring: (i) that its Authorized Users do not share their unique user credentials; (ii) that its Authorized Users understand the need and take appropriate measures to keep their respective user credentials secret and confidential; and (iii) that each Authorized User is informed about the need to keep their computer network and individual workstations physically and electronically secure.
(b) Parasense will be entitled to assume that any person using the Subscription Service under a given user credential is the individual associated with such user credential in our records and will grant user access to information, functionality, and any other capabilities accordingly. Using, or permitting the use of, the Subscription Service under user credentials not actually assigned to a particular individual is prohibited.
(c) Subscriber will be solely responsible for maintaining and updating its Authorized Users, including without limitation updates required to properly terminate access for those individuals who should no longer have access.
(d) Subscriber will be responsible for ensuring that each Authorized User understands and agrees to the standards of conduct and use for the Subscription Service set forth herein.
(e) Subscriber will be solely responsible for ensuring that its Authorized Users comply with all applicable laws and regulations with respect to such persons use of the Subscription Services and shall be responsible and liable for any act or omission by an Authorized User.
3.4 Prohibited Conduct. Subscriber agrees that the Subscription Services will be used solely for the purposes and functions contemplated by this Agreement and shall refrain from using the Subscription Services for any other purpose (“Prohibited Conduct”). “Prohibited Conduct” shall include, but is not limited to, (i) generation of message activity with the Subscription Service of such speed or volume that may lead to malfunctions or degradation of performance of the Subscription Services; (ii) tampering with or attempting to access other user accounts or information of other users; (iii) attempting to gather and use information available from any Subscription Service to transmit any unsolicited advertising; (iv) using, allowing the use of, or otherwise providing User Identity information in a manner other than as provided by Parasense as part of the Subscription Services that allows for any use of data mining, robots, web scraping, or similar data gathering and extraction tools or any downloading or copying of account information for the benefit of another party; (v) reproducing, duplicating, broadcasting, copying, selling, trading, reselling, redistributing in any medium, or exploiting, directly or indirectly, for any commercial purposes any portion of the Subscription Services (including User Identities) without Parasense’s prior written consent; (vi) using the Subscription Services in a manner which Parasense deems to be directly or indirectly in competition with Parasense or contrary to Parasense’s best interests; (vii) removing or altering any of Parasense’s copyright notices; and (viii) the knowing transmission of any viruses, trojan horses, trap doors, back doors, worms, time bombs, cancelbots or other malicious code or computer programming routines that may be introduced to the Subscription Services or other computer network systems of Parasense as a result of access thereto by Authorized Users. Subscriber shall be strictly liable to Parasense for, and shall indemnify, defend and hold Parasense harmless from and against, any losses, claims or other damages it may incur as a result of prohibited conduct by Subscriber or its respective Authorized Users.
3.5 Subscriber Data. Subscriber represents, warrants and covenants that it has the rights and interests necessary to upload and distribute through the Subscription Services all data, information and content uploaded or input to the Subscription Services by Subscriber and the Authorized Users (“Subscriber-Generated Content”). Furthermore, Subscriber hereby represents, warrants and covenants that no such Subscriber-Generated Content will:
(i) infringe on the intellectual property rights of any third party or any rights of publicity or privacy including data privacy;
(ii) violate any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination, or false advertising);
(iii) be defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or
(iv) be obscene, pornographic, or indecent.
3.6 Technical Standards. Subscriber’s computer systems used to access the Subscription Services must meet the minimum computing requirements as specified by Parasense from time to time. Parasense does not represent or warrant that the Subscription Services will be compatible with, or accessible from, all of the hardware, equipment, devices, operating system or web browser used by Authorized Users.
3.7 Third-Party Service Providers. Subscriber acknowledges and agrees that Parasense may work with third-party service providers to provide certain services (e.g., managed services, hosting services, data processing services, hosted software services) for the purposes of facilitating and/or providing Subscription Services hereunder and that Parasense has the right, to the extent applicable, to sub-license Parasense’s rights hereunder to such third-party service providers; provided such sub-license is: (i) solely for the purpose of facilitating or providing the Subscription Services hereunder; and (ii) subject to all of the applicable terms and conditions set forth in this Agreement.
4.1 Issue Resolution. Subject to the payment in full of the Fees and Subscriber’s ongoing compliance with this Agreement, Parasense will use commercially reasonable efforts to address errors in the Subscription Services in a timely manner.
4.2 Technical Support Responsibility. Subscriber acknowledges that support services to be provided by Parasense do not include assistance with regard to Authorized User’s hardware and/or software.
4.3 Maintenance Windows. From time to time, Parasense and/or a third-party service provider may update or perform maintenance on the underlying software or hosting environment and perform other routine software and/or hardware maintenance. Parasense will use commercially reasonable efforts to provide notice to Subscriber in advance of all outages due to such planned maintenance.
4.4 Excusable Delay. Parasense will use commercially reasonable efforts to keep the Subscription Services available for Subscriber’s use and the use of its Authorized Users; however, Parasense cannot and will not be responsible for any loss or unavailability of the Subscription Services that results from a cause over which Parasense does not have direct control, including, but not limited to, emergency maintenance service, failure of electronic or mechanical equipment (other than equipment owned by, or operated on behalf of, Parasense) or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. Neither party will be deemed in default of this Agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third party suppliers, or for any other cause beyond the control of that party.
4.5 Corrections, Updates, and Enhancements. As part of the Subscription Services, Parasense shall make available to Subscriber any corrections, updates, enhancements and other changes to the Subscription Services made generally available by Parasense to all subscribers the Subscription Services. Parasense retains the right, in its sole discretion, to enhance, modify or alter the operation of the Subscription Services, and/or the underlying software at any time. Furthermore, Parasense reserves the right, at its sole discretion, to offer new functionality and other services for a separate fee and subject to the parties’ mutual agreement to separate terms and conditions.
5.1 Subscriber Data. As used herein, “Subscriber Data” shall mean all non-personal data provided by the Subscriber and Authorized Users to Parasense via the Subscription Services.
(a) All Subscriber data entered into the Parasense platform shall remain the Subscriber’s property. Subscriber shall hold all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to Parasense the following rights, on behalf of itself and Authorized Users.
(i) For the Term of this Agreement (as defined in Section 11 below), royalty free, worldwide, non-exclusive, non-transferable, irrevocable, right and license to host, use, reproduce, create derivative works of, publish, edit, translate, distribute, and otherwise display the Subscriber Data (A) for the benefit of Subscriber and its Authorized Users; and (B) for the purpose of performing Parasense services under this Agreement.
(ii) Subscriber also grants to Parasense a non-exclusive, royalty-free, non-terminable, licence to host, use, copy, store, transmit, create derivative works of any and all Subscriber data (and to combine it with the data of other Subscriber’s) for its own business purposes.
(iii) Parasense shall not publish or display any Subscriber data other than to the Subscriber and Authorised Users without fully anonymising the Data, or without the Subscriber’s consent in writing.
(iv) Without limiting any of the forgoing, Subscriber shall permit Parasense to track, record, store, use and otherwise access data related to the performance of the Subscription Services, to gather and use Subscription Service and resource usage for product development, quality initiatives, benchmarking and reporting services. The data collected by Parasense will be used for internal use, during and after the Term of this Agreement, in accordance with all applicable laws and regulations.
5.2 Personal Data. As used herein, “Personal Data” means any information that relates to, or can be used to identify, locate, or contact an identified or identifiable living individual. Parasense shall:
(i) process Client Personal Data only to the extent, and in such a manner, as is necessary for the purpose of providing the Services and shall not process any Client Personal Data for any other purpose;
(ii) implement appropriate technical and organisational measures to protect Client Personal Data against unauthorised or unlawful processing and against accidental loss or damage;
(iii) take reasonable steps to ensure the reliability of any Parasense personnel who have access to Client Personal Data;
6.1 Ownership. Parasense and its licensors retain all ownership, intellectual property rights and all other right, title and interest in and to the Subscription Services, underlying software and technology (but excluding Subscriber’s data), and in all copies, improvements, enhancements, modifications and derivative works thereof, including without limitation, all patent, copyright, trade secret and trademark rights. Parasense reserves all rights not expressly granted to Subscriber and Authorized Users hereunder.
6.2 Title. Unless expressly provided hereunder, Parasense does not grant any express or implied right(s) to Subscriber and/or any of its Authorized Users under any patent(s), copyright(s), trademark(s), or trade secret information with respect to the Subscription Services or underlying software. Accordingly, unauthorized use of any material accessible through the Subscription Services may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. Parasense, the Parasense software, and all other names, logos, and icons identifying Parasense’s products and services are proprietary marks of Parasense and its affiliates, and any use of such marks without the express written permission of Parasense is strictly prohibited.
6.3 Subscriber Feedback. Subscriber acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Subscription Services, or any other Parasense software or service (“Feedback”), provided by Subscriber or its Authorized Users to Parasense shall not be treated as Subscriber’s confidential or proprietary information. Subscriber acknowledges and agrees that Parasense shall not be obligated to develop or provide to Subscriber any updates, upgrades, modifications or new products and services based on Feedback
7.1 Confidentiality Obligations. Subscriber agrees and acknowledges that, as a result of its access to the Subscription Services hereunder, Authorized Users shall have access to information Subscriber may consider confidential and proprietary information (as further defined below, the “Confidential Information”). As a condition of this Agreement and Subscriber’s access to the Subscription Services hereunder, Subscriber and Parsense agrees: (i) to keep confidential all Confidential Information disclosed to it by either party, or any of either party’s officers, directors, employees, agents, contractors or sub-contractors; (ii) not to use the Confidential Information except to the extent necessary to perform its obligations hereunder and/or use the Subscription Services in accordance with the terms and conditions set forth herein; and (iii) to protect the confidentiality of the Confidential Information in the same manner as it protects the confidentiality of its own confidential information (at all times exercising at least a commercially reasonable degree of care). For purposes of this Agreement, “Confidential Information” includes any non-public technical or business information of Subscriber or Parasense, including any information relating to the function or operation of the Subscription Service, software and associated intellectual property, screen or menu hierarchies, techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, customer lists, business forecasts, marketing plans, the terms of this Agreement, and information or any materials marked confidential. “Confidential Information” will not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of Subscriber, subsequent to disclosure by Parasense; or (4) Subscriber becomes aware of from a third party not bound by non-disclosure obligations to Parasense and with the lawful right to disclose such information to Subscriber. On termination or expiration of this Agreement, Subscriber will return or destroy Parasense’s Confidential Information. Notwithstanding the foregoing, Subscriber will not be required to remove or destroy copies of Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Subscriber by law or regulation. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with Parasense, resulting in irreparable harm to Parasense, and therefore, that upon any such breach or any threat thereof, Parasense will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies Parasense might have at law or equity.
7.2 Disclosure As Matter of Law. If either party or any of their affiliates or their respective employees or agents are requested or required (whether by oral questions, interrogatories, requests for information or documents in legal proceedings, law enforcement proceedings, subpoena, civil investigative demand or other similar process or by any other legal requirement) (collectively, “Document Request”) to disclose any of the Confidential Information (as defined in Section 6.1 above) or other data of Subscriber or any Authorized User, such party will use commercially reasonable efforts to disclose such information prior to the deadline by which such party must respond to the Document Request (“Document Request Deadline”). Upon receiving written notice of a Document Request, such party will provide the other party with written notice (unless such notices are precluded by the applicable process) of the Document Request so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, prior to the Document Request Deadline, the other party obtains a protective order or other appropriate remedy (and provides the same in writing to such party prior to the Document Request Deadline), such party will withhold Confidential Information and other data in accordance with the protective order or remedy. On the other hand, if at the expiration of the Document Request Deadline, the other party has not obtained a protective order or other appropriate remedy (and provided the same in writing to such party prior to the Document Request Deadline) and/or waives compliance with the provisions of this Agreement, such may disclose Confidential Information of the other party in accordance with the Document Request.
8 DISCLAIMER OF WARRANTIES
8.1 ALL INFORMATION AND SERVICES PROVIDED THROUGH SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. PARASENSE DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, TITLE, NONINFRINGEMENT, UNINTERRUPTED OR ERROR-FREE OPERATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SUBSCRIPTION SERVICES AND ANY EQUIPMENT OWNED OR SOFTWARE LICENSED BY SUBSCRIBER OR ITS AUTHORIZED USERS, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE SUBSCRIPTION SERVICES, EQUIPMENT, SOFTWARE, OR DATA.
8.2 EXCEPT WITH REGARD TO VIOLATIONS OF THE CONFIDENTIALITY PROVISIONS OF SECTION 7 (CONFIDENTIALITY) OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER AND/OR ANY AUTHORIZED USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 SUBSCRIBER ACKNOWLEDGES AND AGREES THAT PARASENSE SERVES AS A PROVIDER OF SOFTWARE FUNCTIONALITY ON A HOSTED BASIS UNDER THIS AGREEMENT AND THAT PARASENSE DOES NOT WARRANT THE AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS AND CONTENT OF THE SUBSCRIPTION SERVICE, OR ANY DATA OR INFORMATION DOWNLOADED, UPLOADED, OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE SUBSCRIPTION SERVICES. SUBSCRIBER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE SUBSCRIPTION SERVICES ARE AT SUBSCRIBER’S (AND EACH AUTHORIZED USER’S) SOLE RISK AND DISCRETION AND PARASENSE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER, ANY AUTHORIZED USERS OR THEIR RESPECTIVE PROPERTY. PARASENSE SHALL NOT BE LIABLE TO SUBSCRIBER, ANY AUTHORIZED USERS, OR ANY OTHER THIRD PARTIES NOR DEEMED TO BE IN DEFAULT OF THIS AGREEMENT, ON ACCOUNT OF ANY DELAYS, ERRORS, MALFUNCTIONS, COMPATIBILITY PROBLEMS OR BREAKDOWNS WITH RESPECT TO THE SUBSCRIPTION SERVICES, DATA OR SERVICES PROVIDED HEREUNDER, UNLESS SUCH DELAY, ERROR, MALFUNCTION OR BREAKDOWN RESULTS SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PARASENSE.
8.4 SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SUBSCRIPTION SERVICE IS NOT A SUBSTITUTE FOR COMPETENT, PROPERLY TRAINED AND KNOWLEDGEABLE PROFESSIONALS WHO BRING PROFESSIONAL JUDGMENT AND ANALYSIS TO THE INFORMATION PRESENTED BY THE SUBSCRIPTION SERVICE AND THAT SUBSCRIBER IS SOLELY RESPONSIBLE FOR OBTAINING ANY NECESSARY CONSENT FOR USE OF SUBSCRIBER DATA AND AUTHORIZED USER INFORMATION, AND DETERMINING THE DATA NECESSARY FOR AUTHORIZED USERS TO MAKE DECISIONS USING THE SUBSCRIPTION SERVICE.
9.1 Subject to any disclaimers or limitations of liability set forth or incorporated by reference herein, each party (as an “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents (each an “Indemnified Party”) from and against all liabilities, damages and expenses, claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys’ fees) (each a “Claim”) which may be suffered by, accrued against, charged to or recoverable from an Indemnified Party by reason of or in connection with the Indemnifying Party’s performance or failure to perform, or improper performance of any of the Indemnifying Party’s obligations under this Agreement.
9.2 Parasense will defend, indemnify and hold harmless Subscriber and its directors, officers, employees and agents from and against any third party claims, actions and proceedings and any cost or expense (including payment of reasonable attorney’s fees) arising or resulting from any claim that use by Subscriber or its Authorized Users of the Subscription Services in accordance with the terms and conditions set forth herein infringes any copyright, trademark or service mark, or misappropriates any trade secret of any third party (each an “Infringement Claim”). To the extent the Subscription Service either becomes the subject of an Infringement Claim, or in Parasense’s sole judgment may become the subject of an Infringement Claim, Parasense may, at its own expense and option: (i) procure for Subscriber the right to continue using the Subscription Service; (ii) replace or modify the Subscription Service so that it becomes noninfringing while continuing materially to provide substantially the same functionality; or (iii) terminate access to the affected Subscription Services and refund to Subscriber one month’s Fees associated with such terminated Subscription Service. Parasense will have no obligations under this subsection for any Infringement Claim based on use of the Subscription Service contrary to the terms and conditions set forth in this Agreement or Infringement Claims based on content uploaded to, or downloaded from, the Subscription Services by any Authorized User. THE FOREGOING STATES PARASENSE’S ENTIRE LIABILITY, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.3 Subscriber acknowledges that it shall be solely responsible to its Authorized Users (“Subscriber Party”) for any Claims which may be suffered by, accrued against, charged to or recoverable from Subscriber Party by reason of or in connection with Subscriber Party’s use and/or reliance on the Subscription Services or data/information provided or obtained therefrom. Parasense provides access to the Subscription Services to Authorized Users strictly though Subscriber and no Subscriber Party shall be deemed a third party beneficiary with respect to this Agreement. Subscriber hereby agrees that Subscriber will defend, indemnify and hold harmless Parasense and its directors, officers, employees, contractors and agents from and against any Claims which may be suffered by, accrued against, charged to or recoverable from a third party (including Subscriber Parties) by reason of or in connection with Subscriber Party’s use and/or reliance on the Subscription Services or data/information provided or obtained therefrom.
9.4 A party’s indemnification obligations hereunder shall be conditioned upon: (a) the indemnified party promptly notifying the indemnifying party of any claim for indemnification hereunder; (b) the indemnified party providing the indemnifying party with all information and assistance necessary to defend or settle such liability or claim; and (c) the indemnifying party having sole control of the defense and all related settlement negotiations; provided no indemnifying party may enter into any final settlement without the indemnified party’s written approval, which approval may not be unreasonably withheld or delayed.
10 LIMITATION OF LIABILITY
10.1 Maximum Liability. Parasense’s aggregate liability for all claims arising from this Agreement, regardless of the nature of such claim, shall not exceed the Fees paid by Subscriber hereunder during the immediately preceding six (6) months of the first claim.
10.2 Parasense will not be responsible for any links to third party websites and/or other resources via the Subscription Service, including the availability of such websites, resources or links. Use of such websites and/or resources is at Subscriber’s sole risk.
10.3 The parties agree that the limitations and disclaimers specified in Section 8 above and this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Subscriber acknowledges that Parasense has set its prices and entered into this Agreement in reliance on the disclaimers of warranty and the limitations of liability set forth in this Agreement and that the same forms an essential basis of the bargain between the parties.
11 TERM AND TERMINATION
11.1 Term. This Agreement shall become effective upon the date first written above and will continue on a month-to-month basis for an initial term of one (1) year (the “Initial Term”). Thereafter, this Agreement shall be automatically renewed for successive one-year periods (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless one of the parties provides the other with thirty (30) calendar days’ written notice prior to the end of the Initial Term or any Renewal Term.
11.2 Suspension of Subscription Services. , Parasense may, in its sole discretion, suspend Subscriber’s, and/or specific Authorized Users’ access to the Subscription Services for any of the following reasons: (i) to prevent damages or risk to, or degradation of, the Subscription Service; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect Parasense from potential legal liability; or (iv) in the event an invoice remains unpaid for forty-five (45) or more calendar days from the invoice date. Parasense will use reasonable efforts to provide Subscriber with notice prior to or promptly following any suspension of the Subscription Services. This Section will not be construed as imposing any obligation or duty on Parasense to monitor use of the Subscription Service.
11.3 Termination by Either Party. This Agreement may be terminated by either party prior to its expiration upon the occurrence of any of the following events:
(i) By mutual agreement;
(ii) Upon at least thirty (120) days’ notice;
(iii) In the event that the other party shall breach any provision of this Agreement or default in the performance of its obligations hereunder, which breach or default shall not have been cured or waived in writing by the party seeking to terminate within fifteen (15) calendar days of receipt by breaching party of written notice setting forth in detail the nature of such material breach; or
(iv) Immediately, without the need for written notice or other action in the event that a receiver or trustee shall be appointed over the whole or any part of the assets of the other party, such other party making an assignment for the benefit of creditors or declaring its inability to pay its debts generally as they become due, or a petition shall be filed by or against such other party initiating any bankruptcy or insolvency proceeding.
11.4 Transition Services. After the Initial Term, in the event Parasense terminates this Agreement, without cause in accordance with Section 10.3(ii) above, Parasense agrees to offer to provide up to twelve (12) months of transition services following the effective date of termination so long as Subscriber remains in compliance with its obligations under this Agreement, including without limitation timely payment of Fees in accordance with its obligations hereunder.
11.5 Obligations of Parties Following Termination. Within thirty (30) calendar days of the effective date of a termination of this Agreement, Subscriber shall pay to Parasense all Fees for Subscription Services actually rendered. In the event this Agreement is terminated prior to the expiration of the Initial Term for any reason other than Parasense’s material, uncured breach, Subscriber shall also pay to Parasense all Fees that would have been payable for each month of the post-termination balance of the Initial Term based on average monthly Fees charged in the months prior to such termination. Upon Subscriber’s request, provided Subscriber has paid to Parasense all payments owed hereunder, Parasense shall provide to Subscriber a copy of Subscriber’s Data in a universally accessible format within thirty (30) days of such request; provided Parasense receives such Subscriber request within forty-five (45) days following the effective date of termination. Subscriber agrees and acknowledges that Parasense shall have no obligation to store, retain or make available to Subscriber, Subscriber Data following the expiration of a sixty (60) day period after the effective date of the termination, or expiration, of this Agreement and Parasense shall have no liability with respect to Subscriber Data in the event Subscriber has not exercised its rights to obtain a copy of Subscriber Data as expressly set forth above. Except for such obligations, neither party shall have any further obligation to the other hereunder. Nothing in this Section 10.5 shall affect Parasense’s right to use Subscriber Data after termination of this Agreement.
12 GENERAL PROVISIONS
12.1 All media releases, public announcements and public disclosures by either party relating to this Agreement or the name or logos of Parasense or Subscriber, including without limitation promotional or marketing material, but excluding any announcement intended solely for internal distribution by the releasing party or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the releasing party, shall be coordinated with and approved by the other party in writing prior to release. Such approval shall not be unreasonably withheld and shall be deemed granted if no objection is made by a party within ten (10) days after it receives a request for approval. Subscriber hereby expressly consents that Parasense may include Subscriber on its disclosed client lists.
12.2 All notices and other communications hereunder shall be in writing and shall be deemed to have been validly served, given or delivered (i) five (5) days after deposit in the United States mail, by certified mail with return receipt requested and postage prepaid; (ii) when delivered personally; or (iii) one (1) business day after delivery to any nationally recognized overnight courier, in all cases addressed to the party to be notified as follows:
If to Parasense at: 9661 Spotswood Trail, Stanardsville, VA 22973, USA
If to Subscriber at: [Insert address] ATTENTION: _______________
or to such other address as each party may designate for itself by like notice.
12.3 Subscriber shall not sell, assign, license, sub-license, or otherwise convey in whole or in part to any third party this Agreement or the services provided hereunder without the prior written consent of Parasense.
12.4 This Agreement shall be considered a contract governed by the internal laws of the Commonwealth of Pennsylvania and any disputes regarding this Agreement shall be heard by the state and federal courts with jurisdiction in Allegheny County, Pennsylvania, USA, and each party consents to the exclusive jurisdiction of such courts.
12.5 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
12.6 Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the parties.
12.7 No waiver by either party of any provision or any breach of this Agreement constitutes a waiver of any other provision or breach of this Agreement and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
12.8 This Agreement shall be binding upon and inure to the benefits of the parties and their successors and permitted assigns.
12.9 The headings contained herein are for convenience of reference only, and are not intended to define, limit or describe the scope or intent of any provisions of this Agreement.
12.10 This Agreement, together with the agreements and documents referenced herein, as such may be amended from time to time, constitute the final and complete understanding and agreement between the parties concerning the subject matter hereof. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by this Agreement. This Agreement may be modified only by a further written agreement executed by an authorized representative of the parties hereto.