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PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE OFFERED BY RUNTRACE, INC. D/B/A TRACE (“TRACE”). BY MUTUALLY EXECUTING ONE OR MORE SERVICE ORDERS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, A “SERVICE ORDER”) OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL SERVICE ORDERS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TOALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
(A) WHEREAS, Trace is the owner and provider of a modern data software-as-a-service platform that provides metrics and analytics features and functionality, and certain other associated services, as more fully described on the Order Form (collectively, the “Services”); and
(B) WHEREAS, Customer wishes to analyze certain data contained within Customer’s internal data stores described on the Order Form (“Data Repositories”) using the Services, and Trace wishes to supply Services to Customer, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration of the mutual covenants and promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. Capitalized terms have the meaning set forth below or as defined within this Agreement.
1.1 “Authorized User” means the employees, agents and independent contractors engaged by the Customer who are authorized to access the Services pursuant to Customer’s rights under this Agreement.
1.2 “Confidential Information” has the meaning given in Section 5.1.
1.3 “Customer Content” means the views, tables, business logic and datasets provided or submitted by, or on behalf of, Customer or its Authorized Users, in connection with the Services and all analytics output generated through Customer’s use of the Services. The Customer Content does not include: (a) Performance Data; or (b) any data maintained in the Data Repositories unless Customer provides Trace access to such data for use in connection with the Services.
1.4 “Documentation” means all specifications, user manuals, and other technical materials relating to the Services that are provided or made available to Customer, and as may be modified by Trace from time to time.
1.5 “Fees” the fees for the Services as set forth on an Order Form.
1.6 “Initial Term” has the meaning given in Section 4.2.
1.7 “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.8 “Order Form(s)” means an executed order form executed by the Parties and referring to this Agreement which specifies the Services and applicable Fees.
1.9 “Performance Data” means general performance and usage data generated or collected through or in connection withCustomer’s use of the Services (such as technical logs, account and login data, processed volumes).
1.10 “Renewal Term” has the meaning given in Section 4.2.
1.11 “Term” has the meaning given in Section 4.1.
1.12 “Third Party Services”means the third party services or applications identified on the Order Form that may require integration into the Services, including the Data Repository accounts.
1.13 “Trace Technology” means the Services, Performance Data, the Documentation and any applicable software, data, or technical information contained within the foregoing.
2. ACCESS TO THE SERVICES; RESTRICTIONS.
2.1 Access. Subject to the terms and conditions of this Agreement, Trace hereby grants to Customer, and the Authorized Users on Customer’s behalf, a limited, non-exclusive, non-transferable (except as permitted under Section 11.4), non-sublicensable right during the Term to: (a) use and access the Services in accordance with the Documentation and the terms of this Agreement; and (b) use and make reasonable copies of the Documentation, in each case solely for Customer’s internal business purposes. Customer acknowledges and agrees that Trace may update the Services from time to time with or without notifying Customer provided that Trace shall use commercially reasonable efforts to ensure that any such updates to not materially degrade the functionality of the Services.
2.2 Restrictions. Customer shall not, and shall procure that its Authorized Users shall not: (a) allow any third party to access the Trace Technology except as expressly allowed herein; (b) modify, adapt, alter or translate the Trace Technology; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Trace Technology for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Services without prior authorization of Trace; (f) modify, copy or make derivative works based on any part of the Trace Technology; (g) access or use the Trace Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (h) attempt to access the Services through any unapproved interface; (i) use the Services in connection with any of Customer’s time-critical or mission-critical functions; (j) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Trace or its licensors on the Trace Technology or any copies thereof; or (k) otherwise use the Trace Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form or this Agreement. Trace reserves the right to suspend Customer or any Authorized User’s access to the Services for any failure, or suspected failure, to comply with the foregoing conditions.
2.3 Usernames and Passwords. Promptly following the Effective Date, Trace will provide to Customer the access codes, passwords, authentication keys or any other relevant procedures, to the extent needed to enable Customer and its Authorized Users access to the Services. Each Authorized User shall be given a unique username and password and Customer shall procure that such Authorized Users will use their unique username and password to access the Services pursuant to this Agreement. Authorized Users may only access the Services during one (1) concurrent login session. Where certain Third Party Services are required to be integrated with the Services, Customer shall procure that each applicable Authorized User provides authentication credentials to access the applicable Third Party Service through the Services. Customer acknowledges and agrees that: (a) only Authorized Users are entitled to access the Services with their unique usernames and passwords; (b) it will ensure that each unique username and password issued to an Authorized User will be used only by that Authorized User when accessing the Services; (c) Customer is responsible for maintaining the confidentiality of all Authorized Users’ unique usernames and passwords, and is solely responsible for all activities that occur under these Authorized User accounts; and (d) Customer will notify Trace promptly of any actual or suspected unauthorized use of any account, username, or passwords, or any other breach or suspected breach of this Agreement of which Customer becomes aware. Trace reserves the right to suspend, disable or terminate any Authorized User’s access to the Services that Trace reasonably determines may have been used by an unauthorized third party. The unique usernames and passwords cannot be shared or used by more than one individual Authorized User to access the Services.
2.4 Company Content. Customer acknowledges and agrees that the Services do not access any data from the Data Repository unless specifically directed by Customer. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content and data maintained within the Data Repositories. Customer will obtain all third party licenses, consents and permissions, and provide all applicable notices, needed for Trace to use, copy, store and process the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary consents and rights for Trace to use the Customer Content submitted by or on behalf of Customer or Authorized Users for the purposes set forth in this Agreement.
2.5 Necessary Equipment. Customer must provide all equipment and software necessary to connect to the Services, including but not limited to, applicable application program interfaces that have sufficient bandwidth to facilitate the Services. Customer is solely responsible for any fees, including internet connection fees, that Customer incurs when accessing the Services.
2.6 Support Services. Subject to the terms and conditions of this Agreement, Trace will exercise commercially reasonable efforts to: (a) provide support for the use of the Services to Customer; and (b) keep the Services operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.7 Implementation Services. Where the Parties have agreed to Trace’s provision of certain implementation services (“Implementation Services”), the details of such Implementation Services will be set out in an Order Form. The Order Form, may include: (a) a description of the Implementation Services; (b) the schedule for the performance of the Implementation Services; and (c) the Fees applicable for the performance of the Implementation Services. Each Order Form will incorporate the terms and conditions of this Agreement.
2.8 Trials. If Customer is accessing or making use of the Services on a trial basis or no-fee basis as specified in the corresponding Order Form (the “Trial”), Customer may use the Service during the Trial provided such use does not to exceed the Service levels set forth in the corresponding Order Form. Customer acknowledges and agrees that the Trial is provided on an “as-is” basis, without any indemnification, support, or warranties or representation of any kind. Further, the Trial may be subject to certain additional restrictions, limitations, and differing terms all as specified in the corresponding Order Form.
3. FEES, PAYMENT, AND TAXES.
3.1 Fees. Unless otherwise expressly specified in the applicable Order Form, the Fees for accessing the Services are payable annually in advance. At the end of each year during the Term, Trace reserves the right to increase the Fees payable for the forthcoming year upon written notice to Customer at least forty-five (45) days prior to the commencement of the forthcoming year.
3.2 Invoicing and Payment. All Fees are quoted in United States Dollars and, except as set forth otherwise in this Agreement, are non-refundable. Trace will invoice Customer for the Fees in advance, unless otherwise expressly specified in the applicable Order Form. Fees are payable thirty (30) days from the date of invoice and will be deemed overdue if they remain unpaid thereafter.
3.3 Late Payments. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) on that overdue balance. Trace reserves the right (in addition to any other rights or remedies Trace may have) to suspend Customer and all Authorized Users’ access to the Services if any Fees are more than fifteen (15) days overdue until such amounts are paid in full.
3.4 Taxes. The Fees do not include taxes, duties or charges of any kind. If Trace is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Trace’s income), then such taxes and/or duties shall be billed to and paid by Customer.
3.5 Withholding Payments. If any applicable law requires Customer to withhold amounts from any payments to Trace hereunder, then Customer will perform such obligations consistent with the provisions of this section. Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Trace with tax receipts evidencing the payments of such amounts. The sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Trace receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Trace would have received and retained in the absence of such required deduction or withholding.
4. TERM AND TERMINATION.
4.1 Term. This Agreement will begin on the effective date of the first Order Form between the Parties and will continue in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).
4.2 Order Form Term. Each Order Form shall have an initial term specified on the Order Form (“Initial Term”). Thereafter, the Order Form will renew for additional terms of one (1) year or such other mutually agreed period (“Renewal Term”) upon the mutual agreement of the Parties.
4.3 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (iii) announces the wind down of their business; or (c) makes an assignment for the benefit of its creditors.
4.4 Effect of Termination. Upon the earlier of expiration or termination of this Agreement: (a) each Party shall promptly return or destroy all (including any copies of) Confidential Information of the other Party and, upon request, each Party shall provide written confirmation that the foregoing obligations have been completed; (b) the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Services and Documentation, and return or destroy all copies of the Documentation in its possession/control; (c) the Parties’ rights and obligations under Sections 1, 2.2, 3, 4.4, 5, 7, 8.3, 8.4, 9, 10 and 11 will survive termination of this Agreement and/or any Order Form; and (d) termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will termination relieve Customer of its obligation to pay all Fees that accrued prior to such termination.
5. CONFIDENTIALITY.
5.1 Confidential Information. Each Party (“Receiving Party”) acknowledges that it may receive from the other Party (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”). The terms of this Agreement and any Order Form, the Trace Technology, and all technical information relating thereto shall be considered Confidential Information of Trace.
5.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party or its Representatives (as defined below) on a non-confidential basis from a source that is not knowingly restricted by law or contract from disclosing it to the Receiving Party; or (c) is independently developed by the Receiving Party, its Representatives without access to or use of the Disclosing Party’s Confidential Information.
5.3 Obligations. During and after the Term, the Receiving Party shall: (a) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; provided that the Receiving Party may disclose Confidential Information without such consent to its directors, officers, employees, third party contractors, and advisors who need to know such information in connection with this Agreement (collectively, “Representatives”); and (b) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence.
5.4 Disclosure by Law. Either Party or its Representatives may disclose Confidential Information to the extent required by law, rule, regulation or legal process, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information (at the Disclosing Party’s sole cost and expense).
5.5 Ownership. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any Intellectual Property Rights in the Confidential Information.
6. DATA SECURITY.
6.1 Trace’s Commitments. During the Term, Trace shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of the Customer Content; (b) prevent unauthorized access to, or disclosure of, the Customer Content or Data Repositories; and (c) protect against threats, hazards and security incidents with respect to the Customer Content, in all such cases solely while such Customer Content is stored on the Services.
6.2 Customer Responsibility for Data Security. Customer is solely responsible for maintaining security of its own Data Repositories. On the Services, Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other usernames and passwords required in order the access the Services. Upon request to Customer’s account manager, Trace may facilitate for Customer the ability to export Customer Content from the Services. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Trace is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. For the avoidance of doubt, Trace shall be responsible for the acts and omissions of itself and its personnel who are performing the Services that impact or may impact the security of Customer’s Data Repositories
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Trace Technology. This Agreement does not grant to Customer any ownership interest in the Trace Technology. The Trace Technology is proprietary to Trace and Trace and its licensors have and retain all right, title and interest, including all Intellectual Property Rights therein. Customer acknowledges that any trademarks, trade names, logos, service marks, or symbols adopted by Trace to identify the Services belong to Trace and/or its licensors, and that Customer has no rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Trace Technology, including any right to obtain possession of any source code, data or other technical material relating to the Trace Technology. All rights not expressly granted to Customer are reserved to Trace.
7.2 Customer Content. The Customer Content, and Customer’s Confidential Information, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Content and Customer’s Confidential Information not expressly granted to Trace in this Agreement are reserved by Customer. Customer grants Trace a non-exclusive, worldwide, royalty-free and fully paid license: (a) during the Term, to store, process and use the Customer Content as necessary for purposes of providing and improving the Services; and (b) on a perpetual basis, to use the Customer Content in an aggregated and anonymized form to: (i) improve the Services and Trace’s related products and services (including through various machine learning exercises); (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding usage of the Services, provided, however, that no Customer-identifiable statistics will be disclosed to third parties except with Customer’s prior written consent. Trace may generate Performance Data to operate, improve, analyze and support the Services for benchmarking and reporting and for Trace’s other lawful business purposes.
7.3 Feedback. Customer hereby grants Trace a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Trace Technology, including for the purpose of improving and enhancing the Services; provided that Customer is not referenced in such use.
8. WARRANTIES; DISCLAIMERS.
8.1 Trace Warranties. Trace represents and warrants to Customer that: (a) the Services will conform in all material respects in accordance with the Documentation; and (b) Trace periodically tests and remediates the Services with respect to viruses, worms or other malicious computer programming codes intended to damage Customer Content. Customer must report any deficiencies in the performance of any of the foregoing warranties to Trace in writing within fifteen (15) days of the non-conformance. Provided the Customer has complied with the foregoing, for any breach of the above warranties, Customer’s exclusive remedy, and Trace’s entire liability, will be the re-performance of the Services and if Trace fails to re-perform the Services as warranted, Customer’s sole and exclusive remedy shall be to terminate this Agreement and receive a refund of any pre-paid but unearned Fees prorated on a monthly basis for the remainder of the term of the applicable Order Form.
8.2 Customer Warranty. Customer represents and warrants that: (a) it has procured all applicable consents required to provide the Customer Content to Trace for the performance of the Services, including in accordance with Section 2.4; (b) the Customer Content will not: (i) infringe or misappropriate any third party’s Intellectual Property Rights; (ii) be deceptive, defamatory, obscene, pornographic or unlawful; (iii) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage Trace’s Technology; and (iv) otherwise violate the rights of a third party; and (c) neither Customer, nor any of its Authorized Users, shall link to the Services any Customer Content that contains any sensitive personal information (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers). Customer agrees that any use of the Trace Technology contrary to or in violation of the representations and warranties of Customer in this Section 8.2 constitutes unauthorized and improper use of the Trace Technology.
8.3 Third Party Services. The Services may require the integration with certain Third Party Services. Customer is responsible for enabling the integration of each Third-Party Service and by doing so, Customer acknowledges that it is instructing Trace to access and share the Customer Content with the providers of such Third Party Services in order to facilitate the Services. Such Third Party Services are not under the control of Trace and Trace is not responsible for any Third Party Services. Customer’s use of the Third Party Services is governed by the Customer’s agreement with providers of the Third Party Services.
8.4 DISCLAIMERS.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED BY TRACE “AS IS” AND “AS AVAILABLE” AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRACE AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. EXCEPT AS SPECIFIED IN SECTION 8.1, TRACE AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE TRACE TECHNOLOGY AND ANY OTHER PRODUCT OR SERVICES FURNISHED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRACE DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, AND TRACE GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE SERVICES. THE TRACE TECHNOLOGY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRACE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT TRACE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD TRACE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
(c) FROM TIME TO TIME, TRACE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CTRACE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES PROVIDED BY TRACE TO CUSTOMER ARE INTENDED AS ANALYTICS ENHANCING TOOLS ONLY AND DO NOT CONSTITUTE ANY WARRANTY OR GUARANTY THAT THE SERVICES WILL PROVIDE ACCURATE OR INFORMATIVE RESULTS. THE SERVICES SHOULD NOT BE RELIED UPON TO OFFER ACTIONABLE OR RELIABLE BUSINESS RECOMMENDATIONS TO CUSTOMER.
9. INDEMNIFICATION.
9.1 By Trace. Trace will defend at its expense any suit brought against Customer, and will pay any settlement Trace makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services infringe such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America or arising out of Trace’s breach or alleged breach of Section 6.1. If any portion of the Services becomes, or in Trace’s opinion is likely to become, the subject of a claim of infringement (“Infringing Technology”), Trace may, at Trace’s option: (a) procure for Customer the right to continue using the Infringing Technology; (b) replace the Infringing Technology with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Infringing Technology so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Trace Technology. Notwithstanding the foregoing, Trace will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by Trace; or (iii) any modification of the Services by any person other than Trace or its authorized agents, in each case, solely to the extent that absent any such use or modification the Services would not otherwise be infringing. This Section states the sole and exclusive remedy of Customer and the entire liability of Trace, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Trace, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to a third party claim arising out of Customer’s breach or alleged breach of Sections 2.4 and 8.2. This Section states the sole and exclusive remedy of Trace and the entire liability of Customer, or any of its officers, directors, employees, shareholders, contractors or representatives, for the claims and actions described herein.
9.3 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
10. LIMITATION OF LIABILITY.
10.1 Types of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE TRACE TECHNOLOGY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL TRACE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.2 Amount of Damages. EXCEPT FOR A PARTY’S PAYMENT OBLIGATIONS, IN NO EVENT WITLL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TRACE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Basis of the Bargain. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN TRACE AND CUSTOMER. TRACE’S FEES FOR THE SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
10.4 Exclusions. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO: (A) A BREACH BY A PARTY OF SECTION 5; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; OR (C) ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT ((A) AND (B) THE “EXCLUDED CLAIMS”). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY UNDER THIS AGREEMENT ARISING FROM EXCLUDED CLAIMS SHALL NOT EXCEED THE GREATER OF THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TRACE UNDER THIS AGREEMENT, OR ONE MILLION US DOLLARS ($1,000,000).
11. GENERAL PROVISIONS.
11.1 Relationship Between the Parties. Trace is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have, nor represent to any third party that it has, any authority to act on behalf of the other Party. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each Party will maintain appropriate worker’s compensation insurance for its employees as well as general liability insurance.
11.2 Injunctive Relief. Customer acknowledges that the Services contain valuable Intellectual Property Rights and proprietary information of Trace, that any actual or threatened breach of Sections 2 or 5 may constitute immediate, irreparable harm to Trace for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Customer continues to use the Services after its right to do so has terminated or expired, Trace will be entitled to immediate injunctive relief without the requirement of posting bond. Trace acknowledges the Customer Content and Customer Confidential Information is proprietary information of Customer and that any actual or threatened breach of Section 5 may constitute immediate, irreparable harm to Customer for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
11.3 Export and Import Laws. Customer agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Trace, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each Party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Services are provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Trace are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it shall not, without prior U.S. government authorization, export, re-export, or transfer Trace products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
11.4 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that Trace shall have the right to assign the Agreement, without the prior written consent of the other Party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such Party’s assets. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
11.5 Publicity. Upon Customer’s prior written consent (with email consent deemed sufficient), Trace may use Customer’s name and logo in its Customer list (including on Trace’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers, provided that at all times Trace shall use Customer’s name and logo in accordance with Customer’s applicable branding guidelines and Trace may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).
11.6 Notices. All notices required or permitted under this Agreement must be delivered in writing, to the respective address as listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.
11.7 Governing Law. The Agreement is governed by the laws of the State of New York, without regard to its conflicts of laws or provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The prevailing Party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees, court costs, and other collection expenses. Any action or proceeding arising from or relating to this Agreement will be brought in a federal court in New York, New York and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. Notwithstanding the foregoing, nothing shall prevent either Party from seeking relief in any court of competent jurisdiction for any misuse or misappropriating of such Party’s Intellectual Property Rights or Confidential Information.
11.8 Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the Parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agrees that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Sections 8 and 9.
11.9 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Words used in this Agreement, regardless of the number or gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context shall require.
11.10 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
11.11 Entire Agreement; Amendment. This Agreement and any applicable Order Form constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, as applicable, expressly states that it supersedes specific language in the Agreement. It is expressly agreed that the terms and conditions of this Agreement and any Order Form supersede the terms any of Customer’s purchase order. Neither this Agreement nor an Order Form may be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom will be deemed to amend or modify this Agreement or an Order Form.
11.12 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Services and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
