End User License Agreement
“Affiliate” means any entity, directly or indirectly through one or more intermediaries, that is controlled by or is under common control with a party hereunder. For the purposes of this definition, “control” means the ability to direct its affairs and/or to control the composition of its board of directors or ownership of more than fifty percent (50%) (or such lesser percent as may be the maximum that may be owned by foreign interests pursuant to the applicable laws of the country of incorporation) of (a) the shares of stock entitled to vote for directors in the case of a corporation; or (b) the equity or interests in profits in the case of a business entity other than a corporation.
“Data” means all data collected, processed and retained by Gravitive in connection with providing the Services, including without limitation, information, content and media files uploaded by Customer.
“Documentation” means any manuals, instructions or other documents or materials that Gravitive provides or makes available to Customer in any form or medium, which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use or support thereof.
“Intellectual Property Rights” means all common law or statutory: (a) patents, patent applications, and patent rights; (b) rights associated with original works, authorship, moral rights, copyrights and all their exclusive rights; (c) rights relating to the protection of trade secrets and Confidential Information; (d) rights associated with designs, industrial designs and any other design; (e) rights analogous to those rights set forth above and all other industrial or intellectual property rights; and (f) registrations, Provisionals, continuations, continuations-in-part, renewals, reissues, reexaminations and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired.
“Purchase Order” means the order form(s) mutually agreed to in writing by Customer and Gravitive describing the Services, including without limitation, the type, fees and duration of the Services, in a form substantially similar to the Purchase Order set forth in Schedule A of agreement between THE LICENSEE or THE LICENSEE's prarent company and Gravitive. All Purchase Orders shall be subject to and incorporated into this Agreement.
“Service(s)” means using Gravitive’s online web application (SimpleMAR) for creating and managing resident/ individual, their medications and all other information for Customer under this Agreement and according to the Purchase Order, and in the case of a Gravitive Affiliate, the online or hosted services listed in the applicable Purchase Order.
“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
2. PURCHASED ACCESS TO SERVICES
2.1 Services. Subject to all terms and conditions of this Agreement, Gravitive will use commercially reasonable efforts to provide Customer access to the Services. Gravitive, in its sole discretion, may provide the Services using third party vendors or service providers. Customer shall pay Gravitive the fees specified in the Purchase Order.
2.2 Limitations. Gravitive will not be responsible or liable for any failure in the Service or other damages, losses or claims resulting from or attributable to (a) Systems of the Customer or its Affiliates, users, or clients, (b) network, telecommunications or other service or equipment, (c) Customer’s or a third party’s (except for a third party subcontractor engaged by Gravitive to provide the Services) products, services, negligence, acts or omissions, (d) Customer’s breach of Section 3 of this Agreement, (e) scheduled maintenance or (f) loss or inaccuracy of Data or unauthorized access or breach by third parties.
2.3 Customer’s Account. Customer is responsible for all activities that occur under Customer’s account. Customer is responsible for maintaining the security and confidentiality of all usernames and passwords associated with Customer’s account. Customer agrees to notify Gravitive immediately of any unauthorized use of Customer’s username or password or account or any other known or suspected breach of security. As between Customer and Gravitive, Customer is responsible for compliance with the provisions of this Agreement by its employees, agents, subcontractors and end-users and for any and all activities that occur under Customer’s account.
2.4 Systems. Customer shall be responsible for obtaining and operating all Systems needed to use the Services and shall conduct all of its own backup, recovery and maintenance services on its Systems. Customer shall ensure that all Systems are compatible with the Services.
2.5 Affiliates. Customer may purchase the Services of Gravitive Affiliates under this Agreement by Customer and the Gravitive Affiliate executing a Purchase Order substantially in the form set forth in Schedule A of agreement between THE LICENSEE or THE LICENSEE's prarent company and Gravitive. Such Purchase Orders shall be subject to and incorporate this Agreement. If terms in a Purchase Order conflict with this Agreement, those conflicting provisions will have no effect unless specifically agreed in writing by both Customer and the Gravitive Affiliate and then only as to such Purchase Order. The liability of each Gravitive Affiliate and Gravitive under this Agreement shall be several and not joint. Gravitive or the Gravitive Affiliate, as the case may be, shall only be liable under this Agreement as to the specific Purchase Order it signed. In such cases, all references to “Gravitive” in this Agreement shall mean the Gravitive Affiliate and such Gravitive Affiliate shall be a party to this Agreement. Customer’s Affiliates may purchase Services pursuant to this Agreement provided such Customer Affiliate signs the Purchase Order and complies with this Agreement. Customer shall be jointly and severally liable for a Customer Affiliate’s breach of this Agreement.
3. PROPRIETARY RIGHTS; CUSTOMER OBLIGATIONS
3.1 Data. As between the parties, Customer shall own all Data submitted by Customer to Gravitive or collected by Gravitive from Customer. Customer hereby grants Gravitive a license to use, copy, display, and distribute Data for the purposes of providing the Services. Customer agrees to create archival copies or backup copies of all Data. Customer hereby expressly acknowledges that the Services are not intended to be a data backup service, and Customer agrees not to use the Services as a data backup service. Customer represents and warrants that no Data provided by it shall infringe on any Intellectual Property Rights or other rights of third parties. Customer shall have the sole responsibility for accuracy, quality, integrity, legality, reliabilities, appropriateness of and copyright permissions for all Data. Gravitive provides no warranties, representations or indemnification to Customer or any of its users for their access to, and use of, Data. Gravitive additionally makes no representations or warranties regarding its ability to recover any Data lost. Gravitive shall not be responsible to Customer or any third party for any actions taken by Customer or such third party with respect to the Data after the Data leaves the custody of Gravitive. To the extent any Data is transmitted or stored with Gravitive in an encrypted format, Gravitive may not be able to identify the contents of such Data and would only be able to notify Customer generally of any incident involving such encrypted Data but not provide additional, detailed information about the specific contents of the Data. Gravitive shall not be liable to Customer for any damages or costs incurred by Customer in responding to a security breach or any loss or theft of Data, where such breach is not directly attributed to an intentional or grossly negligent act or omission of Gravitive.
3.2 License/No Additional Rights. Gravitive retains all rights in the Services. This Agreement grants no ownership rights to Customer. Gravitive hereby grants to Customer a revocable (in accordance with this Agreement), non-exclusive, non-sublicensable, non-transferable, limited license to use the Services, or any component thereof, during the Term and in accordance with the restrictions set forth herein for Customer’s internal business purposes only. Except for the limited rights and licenses expressly granted hereunder, no other license is granted to Customer, no other use is permitted and Gravitive (and its licensors) shall retain all right, title and interest in and to the Services (including all Intellectual Property Rights and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights, including any actions in violation of Gravitive’s Acceptable Use Policy, which is hereby incorporated herein by this reference.
3.3 Additional Restrictions. Customer additionally agrees that it will not: (a) sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized agents and end-users in furtherance of Customer’s internal business purposes as expressly permitted by this Agreement, (b)modify, translate or create derivative works of the Services (including comparative works) or reverse engineer, decompile, disassemble or otherwise attempt to derive any of the Services’ source code; (c) distribute the Services software in printed, hardcopy form, in compiled or assembled form or in any other manner or form that effectively recreates or simulates the Gravitive Services, whether electronically or in printed, hardcopy form; (d) share Services’ specific license codes or access passwords with other parties and understands that such passwords are customer specific; or (e) “frame” or “mirror” the Services. Customer shall comply with all applicable import, re-import, sanctions, anti-boycott, export and re-export laws and regulations of the United States and other applicable jurisdictions in using the Services, and Customer shall be solely responsible for complying with any home country restrictions on receipt, use or downloading of the Services. Without limiting the generality of the foregoing, Customer shall not make the Services available to any user that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction. Additionally, Customer may not sublicense, resell or supply the Services for use in or for the benefit of any other organization, entity, business or enterprise without Gravitive’s prior written consent.
3.4 Trademark. Customer shall not alter, obscure or remove any printed or on-screen trademark, copyright or other proprietary or legal notice. The Gravitive name, the Gravitive logo and the product names/ logos associated with the Services are trademarks of Gravitive, and they may not be used other than as already displayed in the Services without Gravitive’s prior written consent.
3.5 Prohibited Content; Suspension. If Gravitive reasonably believes any Customer Data violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the Documentation or Acceptable Use Policy) (“Prohibited Content”), Gravitive will notify Customer of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of Gravitive’s notice, Gravitive may remove or disable access to the prohibited Content or suspend the Services to the extent Gravitive is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, Gravitive may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event Gravitive removes content without prior notice, Gravitive will provide prompt notice to Customer unless prohibited by law.
3.6 Injunctive Relief. Customer acknowledges and agrees that any breach by it or any of its agents, employees, users or representatives of this Article 3 shall cause irreparable injury to Gravitive and that, in such an event, and in addition to any other remedies that may be available, in law, in equity or otherwise, Gravitive shall be entitled to seek and obtain injunctive relief against any threatened or continuing breach hereof.
4. PROFESSIONAL SERVICES
Customer retains Gravitive to provide the professional services set forth in the Purchase Order (“Professional Services”). Gravitive will perform the Professional Services in a professional, timely and workmanlike manner. Except as the parties otherwise agree in writing, Professional Services and the results thereof are made available “AS IS.”
5.1 Payment Terms. Access to the Services shall be billed in advance and such fees are non-refundable. Fees for any professional services shall be billed in arrears on a monthly basis. Additional fees shall be as set forth in the Purchase Order. All invoices shall have payment terms of 15 days. All amounts payable under this Agreement by Customer will be paid to Gravitive without setoff or counterclaim, and without any deduction or withholding.
5.2 Taxes. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Gravitive's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
6. LIMITED WARRANTY AND DISCLAIMERS
6.1 Gravitive Services Warranty. Gravitive will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer must report any deficiencies in the Services to Gravitive in writing within thirty (30) calendar days from the date Customer becomes aware of such deficiencies. Customer’s exclusive remedy and Gravitive’s entire liability for breach of the foregoing warranty is to provide services to correct the deficiencies. If Gravitive is unable to correct the deficiencies, Customer is entitled to terminate the Gravitive Service or this Agreement. Notwithstanding the foregoing, Services may be temporarily unavailable, when deemed reasonably necessary or prudent by Gravitive to repair, maintain or upgrade the Services or for causes beyond Gravitive's reasonable control.
6.2 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. GRAVITIVE DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, GRAVITIVE HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY GRAVITIVE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSES. GRAVITIVE IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER FOR THE OPERATION OR PERFORMANCE OF THE INTERNET. Some jurisdictions do not allow the exclusion of implied warranties, which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, GRAVITIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
7. LIMITATION OF LIABILITY
EXCEPT FOR FRAUD, OBLIGATIONS OF CUSTOMER TO MAKE PAYMENT HEREUNDER OR CUSTOMER’S liability for infringement or misappropriation of GRAVITIVE’S intellectual property rights, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES (OR ITS OR THEIR SUPPLIERS OR LICENSORS) BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA (UNLESS SUCH LOSS CONSTITUTES A BREACH OF THIS AGREEMENT), LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO,
LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (C) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO GRAVITIVE HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. Some jurisdictions do not allow the exclusion of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to CUSTOMER. IN THESE JURISDICTIONS, GRAVITIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.1 Customer Indemnification. Customer shall defend, indemnify and hold harmless Gravitive and its Affiliates and each of their directors, officers, members, employees, contractors, agents and licensors (collectively, “Gravitive Indemnitees”) from and against any third party claims, actions, demands, proceedings or suits (collectively, “Claims”) and any losses, damages, fines, penalties liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) resulting therefrom that arise out of or relate to (a) any claim that the Data or other information supplied by Customer, any of its users, those submitting forms to Customer or a third party on behalf of Customer infringes the Intellectual Property Rights or other rights of a third party or has caused harm to a third party; (b) any breach by Customer of any term of this Agreement; or (c) Customer’s violation of any federal, state or local law or regulation relating to Customer’s use of the Services, including without limitation, data protection and data security laws. Customer will further defend, indemnify and hold Gravitive and the Gravitive Indemnitees harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks data or other Customer related information, including without limitation, prompt payment to Gravitive of all costs (including reasonable attorneys’ fees) incurred by Gravitive as a result and for Gravitive’s staff time in responding to such third party subpoena or compulsory legal order or process at Gravitive’s then applicable hourly rate.
8.2 Gravitive Indemnification. Gravitive shall defend, indemnify and hold harmless Customer and its Affiliates and each of their directors, officers, members, employees, contractors, agents and licensors (collectively, “Customer Indemnitees”) from and against any third party Claims and any losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees but excluding fines and penalties) resulting therefrom that arise out of or relate to (a) any claim that the Services, when used in accordance with this Agreement and Gravitive’s instructions and the applicable Documentation, infringe the United States Intellectual Property Rights of a third party; (b) any breach by Gravitive of any term of this Agreement; or (c) Gravitive’s violation of any applicable federal, state or local law or regulation through Gravitive’s provision of the Services to Customer. If any Service is determined by a court of competent jurisdiction to be infringing, or in Gravitive’s opinion is likely to become the subject of a claim of infringement or violation, Gravitive may, at its option, procure for Customer the right to continue using the Service or replace or modify the Service so it is not infringing, provided that as modified, the Service continues to comply with the specifications agreed upon in this Agreement. If, in Gravitive’s sole discretion, none of the foregoing is commercially reasonable, Gravitive may terminate this Agreement or the applicable Service and direct Customer to cease use of the Service and return or destroy all copies of the services, including any Documentation. Gravitive will have no liability to so defend and pay for any infringement claim to the extent it (i) is based on modification of the Services other than by Gravitive; (ii) results from failure of Customer to use an updated version of the Services; (iii) is based on the combination or use of the Services with any software, product or service not provided by Gravitive; (iv) results from use of the Service after the license was terminated or after Gravitive provides notice to cease such use; (v) results from a Service not used in accordance with this Agreement, any Documentation, or Gravitive’s instructions and specifications; or (vi) arises from Gravitive’s compliance with any design, specification or instruction of Customer.
THIS SECTION 8.2 SETS FORTH CUSTOMER’S SOLE REMEDIES AND GRAVITIVE’S SOLE LIABILITY AND OBLIGATION FOR ANY DAMAGES COVERED UNDER THIS SECTION 8.2.
8.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any claim, suit, action or proceeding (each an, “Action) for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall reasonably cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel approved by the Indemnitee, such approval not to be unreasonably withheld or delayed, to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Section 8 except to the extent the Indemnitor can demonstrate it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner without Indemnitee’s prior written consent, such consent not to be unreasonably withheld or delayed.
9. TERMS AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect unless terminated pursuant to the express provisions of this Agreement or until all Plans under this Agreement have terminated (“Termination”). The initial term for each Purchase Order shall be as specified in the Purchase Order, or if no term is specified, for one year from the effective date of said Purchase Order (the “PO Initial Term”). Upon expiration of the Initial Term of an Order, the Purchase Order will automatically renew on one month terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). In the event services are terminated, customer will have 90 days to request Gravitive, by written notice, to provide necessary data from the system. Gravitive reserves the right to increase its fees prior to the start of any Renewal Term provided Gravitive gives Customer notice of such fee increase at least 60 days prior to expiration of the then current term. Any price increase shall take effect at the beginning of the next Renewal Term unless otherwise agreed in writing by the parties. If Customer elects not to renew a Purchase Order but continues using a Service beyond the applicable Term, Customer shall be responsible for paying all fees due for the next annual term of said Service, which may be increased at any time by Gravitive, and the terms of this Agreement shall continue to apply to such use.
9.2 Termination/Suspension. This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Gravitive may suspend or terminate Customer's use of the Services at any time without prior notice: (a) in order to prevent damages to, or degradation of, Gravitive’s Internet network integrity, computers, Systems or infrastructure or that of its contractors; (b) if needed to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (c) in order to otherwise protect Gravitive from potential legal liability; or (d) if Customer does not provide a valid payment method or fails to pay fees in accordance with Section 9.2(a), above. Gravitive shall use commercially reasonable efforts to notify Customer of the reasons for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, Gravitive shall promptly restore use of the Services to Customer as soon as the event giving rise to the suspension has been resolved. Customer is responsible for all Service fees during any suspension periods, including the time between any suspension/termination and reactivation of the account after Customer cures such breach. Nothing contained in this Agreement shall be construed to limit Gravitive’s action or remedies in any way with respect to any of the foregoing activities. Gravitive reserves the right to take any and all additional actions it may deem appropriate with respect to Customer's use of the Services, including taking action to recover the costs and expenses of identifying offenders and excluding them from the Services, and levying cancellation charges to cover Gravitive’s expenses in the event of disconnection of dedicated access for the causes outlined above.
9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive, (b) Gravitive may, but shall not be obligated to, delete Data and (c) the provisions of Sections 2.2 (Limitations), 3 (Proprietary Rights), 5 (Payments), 6.2 (Disclaimers), 7 (Limitation of Liability), 8, (Indemnification), 10 (Confidentiality), 11 (General Provisions) and this Section 9.3 shall survive.
10.1 Confidential Information. “Confidential Information” means non-public information, technical data or know-how of a party and/or its Affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
10.2 Not Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; or (v) approved for release by written agreement with the disclosing party.
10.3 Confidentiality Obligation. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for one (1) year after the termination or expiration of this Agreement.
10.4 Return of Confidential Information. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party (which in the case of Customer as the disclosing party, Customer shall make such request within 120 days after the termination effective date), either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control.
The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents. After 180 days from the termination effective date, Gravitive may destroy all Data without further notice to Customer.
10.5 Permissible Disclosure. In case a party must disclose the disclosing party’s Confidential Information to comply with applicable law or regulation or receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand or disclosure. The receiving party shall reasonably cooperate, at the disclosing party’s expense, with any attempt to procure a protective order or similar treatment. In the event such protection is not obtained or the disclosing party waives compliance with the provisions of this Agreement, the receiving party agrees to disclose only that portion of the Confidential Information which it is legally required to disclose.
11. GENERAL PROVISIONS
11.1 Entire Agreement. This Agreement (which includes the terms herein and any applicable Purchase Order(s) and Addendums, including without limitation, any agreement incorporated herein by the parties by express reference) constitutes the entire agreement and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of a conflict, the order of precedence shall be in the following order: (i) the terms of this Agreement, (ii) the Purchase Order, and (iii) any other agreement incorporating this Agreement. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
11.2 Governing Law. This Agreement shall be treated as though executed and performed in the State of New Jersey and shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted in the federal courts of the United States or the courts of the State of New Jersey in each case located in the city of Monmouth Junction and County of Middlesex, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
11.3 Arbitration. Except as provided below, the parties hereby agree to arbitration in the State of New Jersey, administered by the American Arbitration Association under its then current Commercial Arbitration Rules, of any claim or dispute arising out of or relating to this Agreement or the services to be provided by Gravitive hereunder (collectively “Disputes”) which may arise between them, including but not limited to: Disputes arising out of or in connection with any relationship of the parties, any transaction between the parties contemplated herein, this Agreement, the construction, scope, validity, interpretation, effect, performance or non-performance of any such transaction or agreement (including this Agreement, this Arbitration provision, or arbitrability), and all claims of any kind (whether contractual, non-contractual, tort, common law, equitable, or statutory in nature) or the consequences of any of the foregoing. The laws of the State of New Jersey shall govern, without giving effect to its conflict of laws principles. Within ten (10) calendar days of service of a Demand for Arbitration pursuant to this Agreement, the parties shall agree upon a sole, knowledgeable and impartial arbitrator. If the Parties cannot agree upon a sole, knowledgeable and impartial arbitrator, either party may apply to a court of competent jurisdiction for appointment of the arbitrator.
Discovery shall be limited and the parties need only produce documents they intend to rely upon. A party may only obtain additional documents they know to exist only upon a showing that they are directly relevant and material to the issues in the case. Depositions, if any, are limited to one (1) deposition for fact witnesses, plus a deposition of each expert (if any) identified, all limited to four (4) hours per deposition. The parties hereby irrevocably waive any indirect, consequential or punitive damages, and the arbitrator(s) shall have no power to grant same. Judgment on the award may be entered in any court having jurisdiction thereof.
The parties agree that all information concerning the fact, substance or result of any such Dispute or arbitration shall remain confidential and shall not be disclosed except to the extent necessary to enforce the arbitration award or as otherwise required by law. This provision shall survive termination of this Agreement. If a court determines any part of this Arbitration provision is invalid or unenforceable, then such part shall not affect the validity or enforceability of any other part of this provision or any other provision of this Agreement, and all other parts and provisions shall remain in full force and effect. The parties hereby consent to jurisdiction and venue in the State of New Jersey.
To the fullest extent permitted by applicable law, no arbitration proceeding under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned.
This provision shall not prevent a party from seeking temporary injunctive relief from a New Jersey federal or state court to preserve the status quo or preserve evidence pending arbitration. Moreover, in the event that Customer has in any manner violated or threatened to violate Gravitive's Intellectual Property Rights, Gravitive may seek injunctive or other appropriate relief in any state or federal court in the State of New Jersey.
11.4 Attorneys' Fees. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses, including reasonable attorneys' fees, incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.5 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified below, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
11.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
11.7 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
11.8 Force Majeure. Neither party is under any liability in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of any matter outside of said party’s reasonable control including, but not limited to, Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, any power interruptions or failures of or interruptions to any communications equipment, software or hardware. This Section shall not apply to limit Customer’s payment obligations under this Agreement.
11.9 Federal Government End Use Provisions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.