This Service Subscription Agreement (this “Agreement”) is entered into by and between OCI, Inc. (“OCI”), and you and the entity on behalf of which you are placing an order or accessing the Service (as defined below) (each, a “Customer”). For any subscription to the Service, the “Effective Date” of this Agreement is the date which is the earlier of: (a) the date on which Customer agrees to the terms and conditions of this Agreement via the online interface of the Service; (b) Customer’s initial access to the Service through any online provisioning, registration, or order process; or (c) the effective date of the first Order Form (as defined below) pertaining to such subscription to the Service. This Agreement permits the parties to enter into order forms referencing this Agreement (which may consist of an online registration or order form) (each, an “Order Form”) for Customer’s purchase or receipt of a subscription to use the Service, and sets forth the terms and conditions under which the Service will be delivered. Unless otherwise agreed in writing by the parties, this Agreement governs all of Customer’s purchases and use of the Service, including under Trial Subscriptions. This Agreement includes and incorporates by reference all Exhibits, referenced policies and attachments and all Order Forms entered into by the parties.
From time to time, OCI may modify this Agreement. Unless otherwise agreed by the parties, if an existing subscription is revised by a mutually agreed Order Form after any such modification of the Agreement, then the modified Agreement applies from the effective date of such Order; absent such revision by Order Form, the modified Agreement shall become effective at the beginning of the renewal Subscription Term. OCI will use reasonable efforts to notify Customer of the changes through communications through the Dashboard, email, or other means. Whether or not OCI requires Customer to click to accept the modified Agreement before using the Service in a renewal Subscription Term, Customer’s use of the Service during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it. You affirm, and the entity on behalf of which you are accessing the Service affirms, that you are authorized to bind the applicable entity.
1.1 “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting securities or the ability to control the operations of the entity in question (but only as long as such person or entity meets these requirements).
1.2 “Agreement” means, collectively, the terms set forth below, and the attached exhibits hereto (if any), as well as any SOW and Order Form agreed to by the parties, each of which are incorporated herein by this reference.
1.3 “Customer Data” means any Customer-specific data, materials, or content provided or submitted to or through the Hosted Service.
1.4 “Confidential Information” means this Agreement, the OCI Technology, OCI pricing information, and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) hereunder.
1.5 “Documentation” means the online help OCI provides for use with the Hosted Services.
1.6 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Hosted Service.
1.7 “Hosted Service” means the SaaS-based service provided by OCI pursuant to an Order Form.
1.8 “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights.
1.9 “Licensed Information” means any data or content provided by OCI in connection with the Hosted Service.
1.10 “OCI Technology” means OCI’s proprietary software and other technology provided via the Services, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto (excluding Customer Confidential Information) that is incorporated into the OCI Technology or new software and/or technology modules that OCI develops and makes available, whether or not as part of the Services.
1.11 “Order Form” means a document that details the Service(s) to be provided by OCI, the associated fees, and other related details. An Order Form may be used in connection with, or in lieu of, an SOW. If multiple Order Forms will apply to this Agreement, they will be numbered sequentially. All mutually executed Order Form(s) are deemed incorporated herein by this reference. Each Order Form is intended to define a separate contract particular to that order, incorporating by reference this Agreement. An Order Form may also contain other terms or conditions, mutually agreed upon by OCI and Customer, which apply specifically to that particular order/contract. Customer agrees that each Order Form will be signed by a representative having the authority to bind Customer, and that OCI may presume that such representative has such authority. A binding order is created when OCI accepts and executes the Customer-executed Order Form.
1.12 “Professional Services” means the implementation, configuration, and/or training, services to be provided by OCI to Customer pursuant to an SOW and/or Order Form.
1.13 “Service(s)” means the Hosted Service, the Professional Services, or both, as the context specifies.
1.14 “Statement of Work”/“SOW” means a document that describes the Professional Services to be provided by OCI (if any), and other related terms and conditions. Upon the parties’ execution of the SOW (or Order Form governing such SOW), such SOW will be incorporated herein by this reference.
1.15 “Subscription Term” means the Order Form-specified period during which the Hosted Service is available.
1.16 “Support Services” means OCI’s standard maintenance and support services, as further described in Section 2.1.
1.17 “User” means Customer employees, contractors, agents, or customers whom Customer authorizes to use the Hosted Service. Users may be assigned one or more access levels (with associated privileges), as further described in the Order Form, Documentation, or OCI’s website.
2. PROVISION OF SERVICE AND OCI TECHNOLOGY.
2.1 Provision of Hosted Service; Access Right. Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, OCI will provide Customer with the Hosted Service described on one or more Order Form(s). OCI will host the Hosted Service (either directly or through a third party hosting services provider) and may update the content, functionality, and user interface of the Hosted Service from time to time. Unless otherwise specified in the applicable Order Form, the Hosted Services are purchased on a subscription basis. Customer has a non-exclusive, non-sublicenseable, nontransferable right to access and use the Hosted Service and display the OCI Technology during the applicable Subscription Term, solely for Customer’s internal business purposes in connection with the use case(s) (if any) set forth in the Order Form. OCI reserves all rights not expressly granted hereunder. OCI may create and maintain administrative, support, system, and maintenance accounts within the Hosted Service, all with Customer Data access for OCI and its assigned operators and/or other service providers, in order to deliver the Hosted Service. Customer acknowledges that in order to use the Hosted Service, Customer understands that: (a) Customer must independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by OCI; (b) Customer must follow logon procedures for the services that support such protocols; and (c) OCI assumes no responsibility for the foregoing. Additional details regarding OCI’s Support Services are set forth at www.outcomechains.com.
2.2 Access and License Restrictions. Customer will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Services or OCI Technology; (ii) modify or create derivative works based on the Services or OCI Technology; (iii) create Internet “links” to the Hosted Services or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer or access the Services or OCI Technology in order to build a product using features, functions or graphics similar to the Hosted Service or OCI Technology; (v) copy any features, functions or graphics of the Hosted Services or OCI Technology; (vi) allow User subscriptions to be shared or used by more than one individual User (except that User subscriptions may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Hosted Service for the purposes described in Section 2.1); (vii) use the Services to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Hosted Service or the data contained therein; or (e) attempt to gain unauthorized access to the Hosted Service or its related systems or networks; or (viii) provide or disclose to, or permit use of the Hosted Service or OCI Technology by, persons other than Users.
2.3 Security/Data Integrity. OCI will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data. OCI will not: (a) disclose Customer Data except as compelled by law or as Customer expressly permits in writing, or (b) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with support matters. Customer acknowledges that it is not feasible for OCI to accommodate c onflicting data security requirements from multiple OCI Customers; accordingly, OCI will use good faith efforts to accommodate Customer’s request as and where feasible; however, failure to accommodate Customer’s request will not be deemed a breach of this Agreement.
2.4 Professional Services. OCI will provide such resources and utilize such OCI employees and/or consultants, using the methods and means, all as OCI deems necessary to perform Professional Services. Customer will provide OCI any Customer materials needed for OCI to perform the Professional Services, and hereby grants OCI a royalty-free, non-exclusive, worldwide license to use the same to enable OCI to perform the Professional Services. OCI will use commercially reasonable efforts to meet the schedules set forth in the SOW. Customer will cooperate in good faith to allow OCI to complete the Professional Services in a timely manner. If achieving a milestone depends on Customer’s (or its agent’s) performance of tasks, the projected dates for accomplishing such milestones will be adjusted to reflect any necessary changes. OCI is not providing to Customer any OCI Technology pursuant to this section; such OCI Technology (and the associated hosted Service) is being provided, if at all, pursuant to the terms of Sections 2.1, 2.2, and 2.4.
2.5 Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Hosted Service (a “Trial Subscription”), Customer may use the Hosted Service in accordance with the terms and conditions of this Agreement (including Section 2.2) for the period designated in the Order Form or otherwise by OCI (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Hosted Service. Customer may not use a Trial Subscription for any other purposes, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire, all Customer Data will be permanently deleted, unless Customer purchases a paid subscription to the Hosted Service (provided that the paid subscription is for the same OCI product). If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Hosted Service. Each party has the right to terminate a Trial Subscription at any time. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OCI WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS (WHICH ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”).
2.6 Storage Limits. In the event that the Order Form specifies a database storage limit for the applicable Service, Customer agrees not to exceed such limit, and that if Client does exceed such limit, OCI reserves the right to charge and Client agrees to pay for such additional access, as set forth in the Order Form (or if not set forth in the Order Form), according to OCI’s then current pricing for excess usage.
2.7 Backups. Without limiting OCI’s obligations under Section 2.3, or Customer’s obligations under Section 3, but subject to Section 7.3, Customer agrees to implement reasonable and appropriate measures designed to help Customer secure Customer Data against accidental or unlawful use, loss, access, or disclosure. While OCI will be responsible for backup and recovery of the Hosted Service platform for disaster recovery, OCI will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. Customer agrees to back up Customer Data on a regular basis, and to take appropriate steps to safeguard and ensure the integrity of Customer Data. Customer acknowledges and agrees that if any Customer Data is deleted or destroyed without an existing backup: (a) such Customer Data will be irretrievably lost; (b) OCI will be unable to restore such lost Customer Data; (c) as between the parties, Customer will be solely responsible for re-entering Customer Data into the Hosted Service, and (d) OCI (and its suppliers and licensors) will have no responsibility or liability therefor.
3. CUSTOMER RESPONSIBILITIES. Customer will abide by all applicable laws, treaties and regulations regarding use of the Services. Customer is responsible for properly configuring and using the Hosted Service and taking Customer’s own steps to maintain appropriate security, protection and backup of the Customer Data, which may include the use of encryption technology to protect Customer Data from unauthorized access, and routinely archiving Customer Data. OCI log-in credentials and private keys generated by the Hosted Service are for Customer’s internal use only, and Customer may not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose Customer’s private key to Customer’s Users who are agents and subcontractors performing work on Customer’s behalf. Customer will be deemed to have taken any action that Customer permits, assists, or facilitates any person to take related to this Agreement, the Customer Data, and the Hosted Service. Accordingly, Customer will be responsible and liable for the acts and omissions of all Users in connection with this Agreement, the Customer Data, and the Hosted Service, as well as any and all access to and use of the Services by any User or any other person logging in under a User ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Services. Customer acknowledges that Customer’s access information, including User IDs and passwords of its Users, will be Customer’s “key” to the Hosted Service; accordingly, Customer will be responsible for maintaining the confidentiality of such access information. Customer will: (i) notify OCI promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to OCI promptly and use reasonable efforts to stop immediately any copying or distribution of OCI Technology that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another OCI user or provide false identity information to gain access to or use the Hosted Service. OCI will not be responsible for any unauthorized use until Customer notifies OCI of the same, in writing.
4. INTELLECTUAL PROPERTY OWNERSHIP.
4.1 By Customer. As between OCI and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
4.2 By OCI. As between OCI and Customer, OCI (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Services and the OCI Technology. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. In addition, Customer acknowledges and agrees that OCI may aggregate system performance and usage data across multiple customers, provided that the results do not identify Customer (“Aggregated Anonymous Data”), and the Aggregated Anonymous Data is deemed OCI Technology. For clarity, OCI may use the Aggregated Anonymous Data., for routine business purposes, including improving the Services, OCI customers’ experience with the Services, or as required by law, and may share versions of the Aggregated Anonymous Data. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the OCI name, the OCI logo, and the product names associated with the Services and OCI Technology are trademarks of OCI or third parties, and no license to such marks is granted herein.
5. BILLING AND PAYMENT.
5.1 Fees; Payment. Customer will pay all fees or charges to Customer’s account pursuant to the SOW or Order Form and the terms of this Agreement. Fees are a factor of subscription volume, length of Subscription Term, transaction volume, data volume, number of users and/ or other variables (each, a “Purchased Unit”). Customer will submit an initial order for Hosted Services under an Order Form for the initial Purchased Units Customer selects for the Hosted Service. Unless otherwise set forth in an SOW or Order Form, amounts are due and payable within thirty (30) days following the date of the applicable invoice. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and data volume used and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. If an Order Form specifies any limits for the applicable Hosted Service, Customer agrees not to exceed such limit(s); otherwise, OCI will charge for, and Customer agrees to pay for such additional access. Additional terms applicable to excess usage and adding Purchased Units are set forth below.
5.2 Excess Usage; Adding Purchased Units. If Customer’s usage exceeds the Purchased Units, OCI will invoice Customer will pay for any such excess usage at rates consistent with the applicable Order Form for the Service (unless otherwise agreed by the parties), subject to any additional terms set forth in such Order Form and/or below.
5.3 Adding Purchased Units. In addition, Customer may increase Purchased Units during a Subscription Term at rates consistent with the applicable Order Form, as documented in a mutually agreed Order Form or amendment thereto. All invoices for excess usage or additional Purchased Units will be payable pursuant to the payment terms set forth herein. Customer may not reduce committed Purchased Units during a Subscription Term unless otherwise agreed to by the parties (in the case of OCI, by its CEO or CFO) in writing.
5.4 True-Ups.Without limiting the generality of the foregoing, OCI reserves the right to review Customer’s and all Users’ use of the Hosted Service at any time, to confirm compliance with the payment and other terms set forth in this Agreement. Accordingly, on approximately a semi-annual (every six (6) month) basis, OCI will provide to Customer a written (email sufficing) true-up or update statement (a “True-Up Report”), confirming the number, by User type, of active Users as of the date of the True-Up Report. As used herein, an “Active User” is defined as any User (or other Customer employee, contractor, agent, or sublicensee) who has accessed the Hosted Service under Customer’s account for at least three (3) minutes on at least two (2) occasion at any time during the period reflected in the True-Up Report. For clarity, OCI may elect, in OCI’s sole discretion, to not provide a True-Up Report if the number of Active Users (per subscription type) has not changed since the date of the prior True-Up Report. Concurrently, OCI will issue an updated Order Form and invoice reflecting the number of then-current Active Users, and the Purchased Units and applicable fees due and payable by Customer, prorated for the period remaining in the then-current Subscription Term. If Customer’s policies and procedures require a purchase order to be issued, Customer will promptly issue a purchase order for the additional fees due. Such updated Order Form and invoice will be deemed irrevocably accepted True-Up Report upon delivery, and Customer’s payment obligations will be in accordance with this Section 5. Upon payment for such Active Users by Customer, such Active Users will be deemed authorized Users under this Agreement and for any Renewals. For clarity, and notwithstanding the process set forth above, Customer is responsible for ensuring that its (and all Users’) use of the Services remains in compliance with this Agreement and the Purchased Units, as well as ensuring that all fees for such usage are paid to OCI.
5.5 Taxes. All fees are exclusive of all taxes, levies, or duties, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on OCI’s income. Customer will pay all fees to free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Customer’s responsibility, and Customer will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.
6. TERM; TERMINATION.
6.1 Term; Termination.This Agreement begins on the Effective Date and, unless earlier terminated as set forth below, will continue while an Order Form is in effect between the parties. With regard to each Order Form, if this Agreement has not terminated early, the Subscription Term will renew automatically on the Subscription Term anniversary, unless OCI receives Customer’s written notice of cancellation at least thirty (30) days prior to the expiration ofthe then-current Subscription Term,. Renewal will be at OCI’s then-current list price fees or such other fees as the parties may mutually agree (provided that OCI continues to make the applicable Service modules available);Either party may terminate this Agreement (or any SOW or Order Form) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that in the event of a breach of Section 2.2 or 10, the cure period is five (5) days. OCI reserves the right to modify, or discontinue offering, any Service module effective as of the conclusion of Customer’s then-current Subscription Term.
6.2 Treatment of Customer Data Following Expiration or Termination. Following termination of Customer’s account, OCI may deactivate Customer’s account. Following a reasonable period of not less than thirty (30) days, OCI will be entitled to delete Customer’s account from OCI’s “live” site. During this thirty (30) day period and upon Customer’s request, OCI will grant Customer limited access to the Hosted Service to retrieve Customer Data. OCI will not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that OCI is in compliance with the terms of this section.
6.3 Effect of Termination; Survival. Upon expiration or termination of this Agreement: (a) any amounts (including expenses) owed to OCI for completed Services and work in progress, as well as fees applicable to the duration of the terminated subscription, and other unpaid amounts, will be immediately due and payable; (b) all subscriptions granted under this Agreement and OCI’s obligation to provide (and Customer’s right to access and use) the Service and OCI Technology, will terminate; (c) Customer Data will be returned or deleted pursuant to Section 6.2; and (d) Sections 1, 2.2, 3, 4, 5, 6.2, 6.3, and 7 through 11 will survive.
6.4 Suspension. OCI may suspend Customer’s account and access to the Services or OCI Technology without liability if: (a) OCI has reason to believe that the Services or OCI Technology have been, are being, or will be used in violation of this Agreement; (b) Customer fails to make a payment to OCI when due; (c) OCI reasonably believes that the Services or OCI Technology are being accessed or used by third parties without OCI’s or Customer’s authorization; or (iv) OCI is required to do so by law. If Customer’s account remains suspended for period of thirty (30) days or more, OCI may terminate Customer’s account without notice. If Customer’s account is suspended for nonpayment, Customer remains responsible for any and all fees set forth on each applicable Order Form.
7. REPRESENTATIONS AND WARRANTIES.
7.1 By OCI.
(a) Performance. OCI warrants that the applicable Hosted Service platform, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the specifications for such platform expressly set forth in the applicable Documentation. Customer will have thirty (30) days following the commencement of the initial Subscription Term hereunder to notify OCI of a breach of the foregoing warranty, in which event, OCI’s entire liability and Customer’s sole and exclusive remedy for such breach will be, at OCI’s election, to either: (1) re-perform, modify, or replace the Hosted Service so that it so conforms to such warranty; or (2) provide a refund of the fees paid for the affected Service, and solely as to the refunded Service, this Agreement, and Customer’s right to access such Service will immediately terminate. Any remedy provided by OCI will not extend the original warranty period. OCI will have no obligation under this Agreement to correct, and OCI makes no warranty with respect to, errors caused by or relating to: (1) use of the Hosted Service in a manner inconsistent with the Documentation or this Agreement; or (2) third party hardware or software misuse, modification, or malfunction.
(b) Additional Warranties.
(i) Good Standing. OCI represents and warrants that (a) is organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) this Agreement has been authorized by all necessary corporate action; (c) this Agreement is the legal, valid, and binding obligation of OCI, enforceable against OCI in accordance with its terms
(ii) Viruses. OCI uses commercially reasonable efforts to ensure that the Services and any media upon which any of the foregoing is delivered, will not contain any virus, trap door, worm or any other device that is injurious or damaging to any hardware or software, or Customer systems.
(iii) Noninfringement. OCI warrants that the Hosted Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights. As OCI’s sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, OCI will indemnify Customer as set forth in Section 8.
(iv) Licensed Information. OCI (on behalf of itself and its suppliers and licensors) represent and warrant that the Licensed Information is provided according to industry standards, and that OCI exercises reasonable care in collecting such Licensed Information and producing related reports in connection with the Hosted Service. For clarity, Customer acknowledges that OCI (and its suppliers and licensors) collect data from a number of third party sources and accordingly, OCI and its suppliers and licensors do not and cannot warrant the validity, genuineness, or accuracy of the Licensed Information or the related reports.
7.3 WARRANTY DISCLAIMERS. EXCEPT AS WARRANTED HEREIN, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUALITY, ACCURACY, OR QUIET ENJOYMENT, ARE DISCLAIMED BY OCI, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS. OCI’S SERVICES MAY BE SUBJECT TO, AND OCI IS NOT RESPONSIBLE FOR, LIMITATIONS, RISKS, AND OTHER PROBLEMS INHERENT IN ELECTRONIC COMMUNICATIONS, AND OCI DOES NOT WARRANT THAT USE OF THE SERVICES IS RISK-FREE. OCI DOES NOT PROVIDE REPRESENTATIONS, WARRANTIES, OR ASSURANCES AGAINST INTERCEPTION OR ACCESS, AND WITHOUT LIMITING OCI’S OBLIGATIONS UNDER SECTION 2.3, OCI IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO CUSTOMER DATA OR OTHER PROPERTY IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT PURCHASES HEREUNDER ARE NEITHER CONTINGENT NOR DEPENDENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR STATEMENTS RELATING THERETO. OCI MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND OCI MAY ASSUME THAT SUCH INFORMATION IS ACCURATE, COMPLETE, AND LEGALLY SUFFICIENT. IN PERFORMING THE SERVICES, OCI MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS WILL BE MADE BY AND WILL BE THE SOLE RESPONSIBILITY OF CUSTOMER; OCI WILL NOT BE LIABLE TO CUSTOMER FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF CUSTOMER’S IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.
8.1 By OCI. OCI will defend Customer from and against any and all third party lawsuits to the extent: (a) alleging that the Hosted Service infringes or misappropriates any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by OCI, and will indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. OCI will have no indemnification obligation for infringement or misappropriation claims to the extent arising from: (i) Customer’s or any User’s use of the Hosted Service other than as permitted under this Agreement; (ii) the combination of the Hosted Service with any Customer Data or any Customer or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Hosted Service or any OCI Technology by any party other than OCI or OCI’s agents. THE FOREGOING IS OCI’S SOLE AND EXCLUSIVE OBLIGATION FOR THE THIRD PARTY CLAIMS DESCRIBED IN THIS SECTION.
8.2 By Customer. Customer will defend OCI from and against any and all third party lawsuits to the extent: (a) alleging that the Customer Data directly infringe or misappropriate any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by Customer or any Users, and will indemnify and hold OCI harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim.
8.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
9. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 2.2 OR SECTION 10 OR SECTION 11.8, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND EXCEPT FOR DIRECT DAMAGES TO THE EXTENT ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, NEITHER OCI’S NOR ITS SUPPLIERS’ OR LICENSORS’, NOR CUSTOMER’S AGGREGATE LIABILITY WILL EXCEED THE SUMS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER FORM(S) OR SOW(S). EXCEPT FOR A BREACH OF SECTION 2.2 OR SECTION 10 OR SECTION 11.8, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER OCI NOR ITS SUPPLIERS OR LICENSORS, NOR CUSTOMER, WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF OCI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
10. CONFIDENTIALITY. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or contractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and will not use less than a reasonable degree of care. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly, and with authority, disclosed by a third party to Recipient, without restriction ; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.
11.1 Notices. Notices will be sent by first-class mail or overnight courier to the address set forth above and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Notices to OCI will be addressed to its CFO or CEO.
11.2 Purchases by Affiliates. Any Affiliate of Customer may enter into separate Order Forms with OCI under this Agreement. Each such Order Form must specifically incorporate this Agreement by reference, and will be deemed a separate contract between the parties who execute it, independent of any other Order Form. Each Affiliate will only be liable for the obligations expressly set forth in an Order Form to which it is a signatory. An Order Form executed by one Affiliate may also cover use by other Affiliate(s), to the extent set forth in that Order Form; in such cases, the Affiliate executing the Order Form will remain fully liable for the acts and omissions of all such covered Affiliates. Where an Order Form is executed by OCI and an Affiliate of Customer, the term “Customer” used in this Agreement will be deemed to refer to the executing Affiliate where required
11.3 Assignment. Customer may not assign this Agreement, by operation of law or otherwise, without OCI’s prior written approval. Any attempted assignment in violation of the foregoing will be null and void.
11.4 Governing Law; Venue. This Agreement will be governed by California law, without regard to conflicts of law provisions. Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply.
11.5 Remedies. Except as provided in Sections 7 and 8, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Services and OCI Technology contain OCI’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto may result in harm to OCI for which monetary damages may be inadequate, and that OCI may seek injunctive relief as an appropriate remedy.
11.6 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Services. Except for OCI’s suppliers and licensors, there are no third party beneficiaries under this Agreement
11.7 U.S. Government End Users. If Customer is a U.S. government agency, the following applies. OCI provides the Services, including related software and technology, in accordance with the following: government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with OCI to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.
11.8 Export Compliance. Customer acknowledges that the Services may be subject to U.S. and foreign export and import restrictions. Customer will not and will not allow any export or re-export of any part of the Services, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Services are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
11.9 Waiver; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No modification hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. However, Section 9 will remain in effect notwithstanding the unenforceability of any provision in Section 7. Neither party will be liable for failure to perform due to causes beyond its reasonable control.
11.10 Force Majeure. Neither party will be liable for any failure to perform hereunder due to causes beyond its reasonable control.
11.11 Subcontractors. OCI may engage subcontractors for performance of Services under this Agreement, provided that OCI remains responsible for the overall performance of the Services as required under this Agreement.
11.12 Electronic Signatures. To facilitate execution, the documents that comprise this Agreement (including any Order Form and/or SOW) may be executed by a party in the form of an “Electronic Record” (as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”)). This Agreement may be executed in as many counterparts as may be required to reflect all Parties’ assent, and all counterparts will collectively constitute a single agreement. An “Electronic Signature” (as defined in the ESIGN Act) that can be authenticated will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document.
11.13 Entire Agreement. This Agreement forms the entire agreement between Customer and OCI. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any conflict between the above terms and the terms of any SOW, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form; (b) any SOW; and (c) this Agreement. Any preprinted terms on any Customer purchase order order or other Customer-supplied document will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes. “Including” means “including but not limited to.”
Updated: April 25th, 2017