Scintel Analytics Prophesy End User Agreement
This Scintel Analytics Customer Agreement (the “Agreement”) is between you, XXXXX Inc., a Georgia corporation with offices at ———————————and Scintel Analytics Inc. (“Scintel Analytics”, “Scintel” or “we”, “us” or similar terms), a Georgia corporation with registered offices at 6340 Sugarloaf Parkway, Suite 200, Duluth, GA 30097, and dated as of [DATE]. If you are agreeing to this Agreement not as an individual but on behalf of your company, then “XXXXX”, “Customer” or “you” means your company, and you are binding your company to this Agreement.
1 Scope of the Agreement. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement applies to Scintel Analytics software, add-ons or plugins that you purchase from Scintel Analytics pursuant to an Order (as defined below). This Agreement also covers certain services Scintel may perform for you from time to time pursuant to a written statement of work (“SOW”) relating to, among other things, software development, and programming or consulting services (“Professional Services”).
2 Types of Scintel Analytics Products. This Agreement governs (a) Scintel Analytics’s commercially available downloadable software products (currently designated as “Server” or “Data Center” deployments) (“Software”), (b) Scintel Analytics’s hosted or cloud-based solutions (currently designated as “Cloud” deployments) (“Hosted Services”), (c) any related support or maintenance services provided by Scintel Analytics pursuant to the Scintel Analytics Support Policy, and (d) Professional Services. Software, Hosted Services and Professional Services, together with related documentation (which shall be provided to you upon installation of Software, launch of Hosted Services or completion of Professional Services, as applicable in each case), are referred to as “Products”.
3 Orders.
3.1 Directly with Scintel Analytics. Scintel Analytics’ Product ordering documentation or purchase order (“Order”) will specify your authorized scope of use (“Scope of Use”) for the Products, and SOWs shall set forth, among other things and as applicable, a description of services, deliverables, specifications, business requirements, project scope, schedule, related project activities, acceptance process, warranty period and the roles and responsibilities of the parties. The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use. Orders and SOWs must be duly executed by both parties in order to be binding. You may enter into Orders or SOWs on behalf of your corporate affiliates.
4 Software Terms.
4.1 Your License Rights. Subject to the terms and conditions of this Agreement, Scintel Analytics grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, your applicable Scope of Use, and the documentation. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order. The Software requires a license key in order to operate, which will be delivered as described in Section 8.2 (Delivery).
4.2 Your Modifications. Subject to the terms and conditions of this Agreement: (1) for any elements of the Software provided by Scintel Analytics in source code form, and to the extent permitted in the documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) you may also modify the documentation to reflect your permitted modifications of the Software source code or the particular use of the Products within your organization. Any modified source code or documentation (but excluding the underlying source code for the Products or documentation as provided by us and excluding any Work Product, Your Data, XXXXX Confidential Information or other XXXXX intellectual property, each as hereinafter defined,) constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Scintel Analytics has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products.
5 Hosted Services Terms. (Applicable only for hosted licenses)
5.1 Access to Hosted Services. Subject to the terms and conditions of this Agreement, Scintel Analytics grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the documentation. If Scintel Analytics offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time. We agree to provide you with 60 days’ advance written notice if any such change entails or makes possible collection or tracking of additional or new types of information from or about XXXXX end users.
5.2 Subscription Terms and Renewals. Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions and licenses will renew only on mutual written agreement of the parties.
5.3 Credentials. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Scintel Analytics of any unauthorized use of which you become aware.
5.4 Your Data. “Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data. Subject to the terms of this Agreement, you hereby grant to Scintel Analytics a non-exclusive, non-transferable, worldwide, royalty-free right, without the right to sublicense, to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Scintel Analytics may also access your account or instance in order to respond to your support requests. You shall have access to Your Data at all times, and we will modify or delete Your Data only as directed by you.
5.5 Security. Scintel Analytics implements highest industry standard security procedures to help protect Your Data from security attacks and other unauthorized access or usage, which procedures are no less stringent than those we take to protect our own data and intellectual property. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and, to the extent permitted by applicable law, we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If we detect any attempt to access Your Data or Confidential Information or any suspected security breach, or if a situation arises that requires the implementation of disaster recovery procedures, then we will notify you immediately and commence efforts to cure and mitigate the adverse effects of such breach.
5.6 Storage Limits. There may be storage limits associated with a particular Hosted Service. These limits will be set forth in the applicable Order. Scintel Analytics reserves the right to charge for additional storage or overage fees at rates agreed to by the parties in writing but in no event higher than standard rates.
6 Support and Maintenance. In addition to any training or other services specified in an SOW or Order Form, Scintel Analytics will provide the support and maintenance services for the Products described in the Scintel Prophesy Support Policy attached hereto as Schedule A (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Scintel Prophesy Support Policy and will be provided at the support level and during the support term specified in your Order. The Scintel Prophesy Support Policy may be modified by Scintel Analytics from time to time to reflect process improvements or changing practices. Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
7 Other Services.
7.1 TAM and Training Services. We will provide Technical Account Manager (TAM) and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). Scintel Analytics shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide but excluding any of your Confidential Information or other proprietary material incorporated therein (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products.
7.2 Professional Services. We will provide Professional Services as set forth in an SOW in accordance with the terms thereof. Scintel will cause its personnel to comply with all of XXXXX’s lawful standards and procedures when working on-site at XXXXX’s facilities, including standards and procedures relating to security. All Professional Services shall be performed to the best of Scintel’s ability in a professional and workmanlike manner in accordance with the highest applicable industry standards. All Professional Services shall be completed to your satisfaction and subject to your final approval, and any Work Product (as defined below) shall meet all applicable specifications. Scintel may not subcontract the Services without XXXXX’s express prior written consent. Scintel shall be responsible to ensure that all permitted subcontractors comply with the provisions hereof and are aware of and bound by its obligations, including without limitation those relating to confidentiality. For any Professional Services to be rendered by Scintel at any of XXXXX’s sites, XXXXX shall provide Scintel’s personnel with (i) access to and use of XXXXX’s facilities and relevant information as reasonably necessary, including software, hardware and documentation and (ii) any other items set forth in each SOW. XXXXX will ensure that all XXXXX personnel who may be reasonably necessary or appropriate for the successful implementation of the Professional Services will, on reasonable notice, (a) be available to assist Scintel’s personnel by answering business, technical and operational questions and providing requested documents, guidelines and procedures in a timely manner and participating in progress and deliverable reviews; and (b) participate in the Professional Services as outlined in the SOW. Scintel’s personnel are not and shall not be deemed to be employees of XXXXX. Scintel shall be solely responsible for the payment of all compensation to its personnel, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Scintel’s personnel. Scintel’s personnel shall not be entitled to any benefits paid or made available by XXXXX to its employees.
7.3 Work Product. The term “Work Product” means any original software, documentation, reports, designs, specifications, works of authorship, data that are made, conceived, developed or reduced to practice, alone or jointly with others, by Scintel personnel for you in the course of performing Professional Services, provided that Work Product shall not include Scintel Intellectual Property (as defined below). All Work Product, including all patent, copyright, trade secret and other intellectual property rights related thereto, will be the sole and exclusive property of XXXXX or its designee upon creation. The parties intend that all Work Product shall be considered to be work-for-hire to the extent it qualifies as such under applicable law. To the extent that any Work Product is not, automatically upon creation thereof, owned by XXXXX as a work-for-hire or otherwise, Scintel hereby assigns and agrees to assign to XXXXX all of its right, title and interest in, to and under all Work Product. During and after the term of this Agreement, Scintel will execute documents and give testimony and take further acts reasonably requested by XXXXX with any efforts of XXXXX or its designee to obtain and perfect patent, copyright, trade secret and other legal protection for the Work Product.
7.4 Scintel Intellectual Property. XXXXX acknowledges that as part of performing the Professional Services, Scintel personnel may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge or data which has been originated or independently developed by Scintel or its affiliates or by third parties under contract to Scintel or its affiliates to develop same, or which has been purchased by, or licensed to, Scintel (collectively, “Scintel Intellectual Property”). XXXXX agrees that Scintel Intellectual Property is the sole property of Scintel (or its licensor) and that Scintel (or its licensor) will at all times retain sole and exclusive title to and ownership thereof. Scintel Intellectual Property shall also include any additions, enhancements, improvements or other modifications to Scintel Intellectual Property developed, acquired or first conceived or reduced to practice by Scintel personnel or any third party on behalf of Scintel, whether in conjunction with performing the Professional Services for XXXXX or otherwise, which shall be the sole property of Scintel. The preceding paragraph only relates to Scintel additions, enhancements, improvements or other modifications in its own software that do not relate to XXXXX’s line of business in any way and do not include XXXXX’s Confidential Information or other XXXXX intellectual property. Except as expressly provided in this Agreement, nothing contained in this Agreement shall be construed to grant to XXXXX any right, title, license or other interest in, to or under any Scintel Intellectual Property. Ownership of any customizations of Scintel Intellectual Property done for XXXXX pursuant to engagement hereunder other than as specifically described in this paragraph shall be addressed in a written amendment hereto or in the applicable SOW.
7.5 Professional Services Dispute Resolution. The parties intend to minimize the potential for conflict, misunderstanding, miscommunication or other difficulties that may arise during the course of any Professional Services engagement. Accordingly, the parties agree that the dispute resolution procedures set forth below shall be utilized in the event that either party believes that the other party is not fulfilling, or will not fulfill, its obligations hereunder or in the event of any conflict or disagreement related to the subject matter of an SOW. The concern shall first be communicated to the designated project manager of the other party. If the designated project managers cannot reach a mutual agreeable resolution within two (2) days the matter will be escalated to a senior manager of each party. If the senior managers cannot reach a resolution mater within three (3) days the matter will be referred to a committee consisting of at least two (2) senior managers of each company and an additional senior executive of each party. The committee shall convene as promptly as possible, and in any event no more than ten (10) days after receipt of such notice, to attempt to resolve the problem as promptly as possible. They shall continue to meet in accordance with a schedule they shall determine until the problem shall be resolved; provided, however, that if the problem is not resolved within fifteen (15) business days after the first committee meeting (the “Resolution Period“), either party shall be free to pursue its remedies, at law or in equity, consistent with the terms of this Agreement, unless the parties shall agree in writing to extend the Resolution Period.
8 Returns and Financial Terms.
8.1 Delivery. We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, except as may be otherwise agreed between the parties pursuant to an SOW or otherwise, you are responsible for installation of any Software.
8.2 Payment. You agree to pay all fees and, if applicable, reimbursables expenses in accordance with each Order or SOW. Reasonable out-of-pocket expenses incurred by Scintel in the performance of Professional Services will be reimbursable only if specifically provided in the applicable SOW and pre-approved by XXXXX in writing. All payments hereunder shall be on net thirty (30) days payment terms.
8.3 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Scintel Analytics, Scintel Analytics shall invoice you for such amounts, and you must pay to Scintel Analytics the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, or paid them directly as due. In that case, you will have the right to provide to Scintel Analytics any such exemption or payment information, and Scintel Analytics will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
9 No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 9 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Scintel Analytics’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
10 Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party (excluding your independent contractors and other service providers who are subject to confidentiality obligations), (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
11 Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Scintel Analytics and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Scintel Analytics, including without limitation as they may incorporate Feedback (“Scintel Analytics Technology”). From time to time, you may choose to submit comments, information, questions, general ideas, general descriptions of processes, or other non-proprietary information to Scintel Analytics, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Scintel Analytics may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation to you, royalty to you or restriction from you based on intellectual property rights or otherwise, provided however that Scintel Analytics acknowledges and agrees that you have no obligation to clear any Feedback for Scintel Analytics’ use and make no representations or warranties regarding Feedback. Further, you shall have no liability to us in connection with Scintel Analytics’ use of Feedback, which shall be entirely at Scintel Analytics’ own risk. Under no circumstances will your Confidential Information or other intellectual property be considered Feedback, and nothing in this Section will be deemed to transfer any right, title or interest in or to your Confidential Information or other intellectual property or to lessen our obligations hereunder in connection with your Confidential Information or other intellectual property. Nothing in this Agreement limits Scintel Analytics’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
12 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information, data concerning your users or customers and all data derived from such data and other non-public or proprietary information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should, under the circumstances, reasonably be considered confidential. Your Data including any data regarding your customers shall be deemed Confidential Information of Customer without any marking or further designation. Any Scintel Analytics Technology and any non-public performance information relating solely to the Products shall be deemed Confidential Information of Scintel Analytics without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The foregoing exceptions shall not apply to Confidential Information consisting of personally identifiable information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order or the rules of a national stock exchange on which such party’s shares are listed (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
13 Term and Termination. This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Customer can terminate this Agreement without cause only after 6 months of Agreement initiation on 30-days written notice to Scintel Analytics. If Customer terminates a Professional Services engagement before it is completed, Customer will pay Scintel undisputed pro-rated fees for Professional Services through the termination date. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. If you terminate this Agreement without cause, you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance for the balance of the applicable License Term. You will be entitled to such credits or refunds as well as refunds for prepaid but unperformed Professional Services if you terminate with cause. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, we shall return or securely destroy, as you so direct, all of your Confidential Information and other materials and shall not retain copies thereof, and we shall provide written certification that we have complied with your directions and this provision. To the extent you require reasonable access to the Products to extract any of Your Data, we shall provide you with limited access solely for such purpose for a period of sixty (60) days post-termination. Thereafter, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Scintel Analytics Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.3 (Work Product), 8.2 (Payment), 8.3 (Taxes), 9 (No-Charge Products), 10 (Restrictions), 12 (Confidentiality), 13 (Term and Termination), 14.2 (Warranty Disclaimer), 15 (Limitation of Liability), 17 (Third Party Vendor Products), 20 (Dispute Resolution), and 22 (General Provisions) together with any provisions that by their nature survive.
14 Warranty and Disclaimer.
14.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement. Further, Scintel Analytics hereby represents, warrants and otherwise agrees as follows:
(a) we can grant the license to the Products and none of the Products or any Work Product will infringe any copyright, trademark, trade secret, patent, or other intellectual property right of a third party;
(b) you shall have no obligation to pay any third party for the rights conveyed by us to you;
(c) the Products and the Work Product will perform in accordance with the highest applicable industry standards and practices, and we will perform any Ancillary Services or other services hereunder to the best of our abilities and in an effective, timely, professional and workmanlike manner;
(d) the Products and Work Product shall comply in all material respects with the documentation and the service descriptions as set forth in the applicable Order Form or the specifications and requirements in the applicable SOW;
(e) the Products and the Work Product shall not contain any harmful code and we shall use at least industry standard virus protection practices;
(f) as of the date hereof, there is no action, suit, claim, investigation, or proceedings pending or, to the best of our knowledge, threatened against, by or affecting the Products;
(g) our provision of Services and your in-scope use of the Products and the Work Product will not violate applicable law;
(h) during the term of this Agreement, we will have and maintain insurance as set forth on Schedule B.
14.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL PRODUCTS ARE PROVIDED “AS IS,” AND SCINTEL ANALYTICS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN AND WITHOUT LIMITATION OF OUR OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SCINTEL ANALYTICS NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
15 Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED TWO TIMES (2X) THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US HEREUNDER. THE LIMITATIONS IN THIS SECTION 17 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS OR SOWs, OR (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, VIOLATION OF LAW OR BREACH OF CONFIDENTIALITY OBLIGATIONS. The parties agree that the limitations specified in this Section 17 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
16 IP Indemnification by Scintel Analytics and Other Infringement Remedies.
16.1 Indemnification. We will defend you against any claim brought against you by a third party alleging that a Product or any Work Product, when used as authorized under this Agreement, infringes a United States or European Union patent, trademark, copyright or other intellectual property right (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Scintel Analytics (including reasonable attorneys’ fees) arising out of a Claim or violation by us of applicable law, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. Further, we shall indemnify you for any and all expenses incurred in connection with breach notifications by you that are required or appropriate as a result of a security breach of our systems or any other unauthorized access thereto or loss or misuse of Your Data resulting from our acts or omissions or those of our subcontractors or service providers. We will not enter into any settlement that includes an admission of your wrongdoing or other liability without your express prior written consent. THIS SECTION 18 (IP INDEMNIFICATION BY SCINTEL ANALYTICS AND OTHER INFRINGEMENT REMEDIES) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY SCINTEL ANALYTICS UNDER THIS AGREEMENT.
16.2 Other Infringement Remedies. If an infringement claim as described in Section 18.1 above arises, or if Scintel reasonably believes that a claim is likely to be made, Scintel may, at XXXXX’s option: (i) modify the applicable Work Product or portion thereof so that it becomes non-infringing but functionally equivalent; or (ii) replace the applicable Work Product or portion thereof with material that is non-infringing but functionally equivalent; or (iii) obtain for XXXXX the right to use such Work Product upon commercially reasonable terms to both parties but at no cost to XXXXX. Scintel shall have no obligation under this Section 18.2 or other liability to the extent any infringement claim results or allegedly results from: (1) use of the Work Product or any part thereof in combination with any non-Scintel approved equipment, software or data, or in any manner for which the same was not designed, or if same has been modified or altered by an person or entity other than Scintel; (2) any aspect of XXXXX’s software, documentation or data which existed prior to Scintel’s performance of Services or (3) any claim arising from any instruction, information, design or other materials furnished by XXXXX or any third party (other than third parties engaged by Scintel or from whom Scintel has licensed materials) to Scintel hereunder. The exclusions in the immediately preceding sentence shall not apply in situations where it would be reasonable to expect the Work Product to be used in connection with particular equipment, systems, data or materials.
17 Third Party Vendor Products. Scintel Analytics or third parties may from time to time make available to you (e.g., through the Scintel Analytics Marketplace) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Scintel Analytics does not warrant or support non-Scintel Analytics products or services, whether or not they are designated by Scintel Analytics as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Scintel Analytics products, you acknowledge that Scintel Analytics may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Scintel Analytics products. Scintel Analytics shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
18 Publicity Rights. We may identify you as a Scintel Analytics customer in our promotional and publicity materials.
19 Improving Our Products. We are always striving to improve our Products. In order to do so, we need to measure, analyze, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Products, which will be aggregated with metrics of our other customers and not identifiable with or reasonably attributable to you. We will not use or share any analytics data about your use of the Products, or generated by the Products about your business or customers, except to fulfill the purposes of this Agreement, and we acknowledge that such analytics data is your Confidential Information.
20 Dispute Resolution
20.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this User Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 90 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration should take place in Georgia, USA. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions
20.2 Governing Law; Jurisdiction. This User Agreement and all matters arising from or related to this Agreement (including its validity and interpretation) will be governed by, construed under and enforced in accordance with the applicable laws of the United States and the State of Georgia, USA, applicable to contracts made in and to be entirely performed in that State.
20.3 Injunctive Relief; Enforcement. Nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
21 Changes to this Agreement; Conflicts. This Agreement may only be modified by a written amendment duly executed by both parties. To the extent there are any conflicts or inconsistencies between this Agreement and any SOW, the provisions of this Agreement will govern.
22 General Provisions. Any notices under this Agreement must be given in writing by certified or registered mail. We may provide notices to you (other than legal notices) via email or through your account. Notices will be deemed given upon receipt. You may provide notice to us by post as required herein to Scintel Analytics, Inc., 6340 Sugarloaf Parkway, Suite 200, Duluth, GA 30097, Attn: Chief Operating Officer. XXXXX notices will be sent to XXXXX Inc., 2 Concourse Parkway Suite 800, Atlanta, GA 30328 Attn: EVP/Chief Technology Officer, with a copy to EVP/General Counsel. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Neither party may assign this Agreement without the other party’s prior written consent, except to an affiliate or in the case of a merger or sale of all or substantially all of a party’s assets or to a successor to its business or assets to which the Agreement relates. A party will not unreasonably withhold consent if the assignee agrees to be bound by the terms and conditions of this Agreement. This Agreement (together with its exhibits, schedules and any duly executed Order or SOW) is the entire agreement between you and Scintel Analytics relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. To the extent necessary to achieve the purposes of this Agreement, the parties shall agree on a valid and enforceable substitute provision. As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give a party the express or implied right, power or authority to create any duty or obligation of the other party.
XXXXX Inc. Scintel Analytics Inc.
By: By:
Name: Name:
Title: Title: