1.0 DEFINITIONS. Where used in this Agreement, the following capitalized terms shall have the meanings set forth below, unless the context requires otherwise. Other capitalized terms are defined elsewhere in this Agreement.
“Client Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with Client and to which CSCI provides Services hereunder. All Client Affiliates are included within the definition of “Client” and all references to “Client” in this Agreement are deemed to include all Client Affiliates.
“Services” means the products and services selected by Client as set forth in Exhibit A and any Professional Services (as defined in Section 2.3) provided by CSCI to Client.
“Term,” “Initial Term” and “Renewal Term” have the meanings assigned to them in Section 4.1 of this Exhibit B.
“Third Party Agreement” means any third party’s end user license agreement, terms of service, terms of use, privacy policy, warranty, purchase agreement or other agreement, purchase order or terms applicable to Third Party Products.
“Third Party Products” means any third-party equipment, product, software and/or services, including, without limitation, cloud-based services, platforms and solutions which Client purchases, leases, subscribes to, licenses, accesses or uses as part of the Services.
“User” means each individual Client employee, contractor, agent, or representative who receives and uses Services under this Agreement.
2.0 SERVICES CONDITIONS AND RESTRICTIONS
2.1 Use of Subcontractors. CSCI may provision and perform the Services through its affiliates, agents, vendors, suppliers, or subcontractors.
2.2 Third Party Agreements. Use by Client and its Users of Third-Party Products shall be subject to, and Client agrees to sign, accept, and comply with the terms of, any applicable Third-Party Agreements.
2.3 Professional Services; Quotations. Any (i) one-time consulting or project-based services and (ii) purchases or other acquisition by Client of Third-Party Products from or through CSCI not described in Exhibit A and provided by CSCI to Client during the Term (collectively, “Professional Services”) shall be deemed to be Services covered by this Agreement. Professional Services shall be documented and agreed to by the parties in advance pursuant to CSCI’s quotation system (each, a “Quotation”) and each Quotation shall be incorporated by reference and made a part of this Agreement. In the event of any conflict between the terms and conditions set forth in this Agreement and the terms and conditions of any Quotation, the provisions set forth in this Agreement shall govern.
2.4 Restrictions on Use. Client shall not have any right to receive, use or examine any object code, source code or design documentation relating to the Services or any software utilized by the Services. Client may not copy the Services, in whole or in part. The Services shall not be re-sold, rented, distributed, or transferred by Client to any third party. Client will not use the Services for the benefit of third parties, except Client Affiliates. Client shall not itself, or permit any other party to: (a) reverse engineer, reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Services by any means whatsoever; (b) develop methods to enable any third party to use the Services, in whole or in part; (c) incorporate all or any portion of the Services into any other service or product or create any derivative work; (d) use the Services for timesharing, service bureau, subscription server, or rental use; or (e) publish or otherwise disseminate any results of any tests or operating results of the Services.
2.5 Client Responsibilities. Client shall: (a) provide CSCI with complete and accurate documentation and information, and access to Client’s premises and network, and shall obtain all permissions and access, as may be required by CSCI to perform the Services; (b) provide trained staff to assist as necessary and to answer questions that may arise in connection with the installation, provisioning, and ongoing performance of the Services; (c) be responsible and liable for all use of the Services by its Users and compliance by its Users and with this Agreement, CSCI’s use policies, and applicable Third Party Agreements; (d) at its expense, promptly obtain, install, support and maintain any equipment, software and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating systems, networking, web servers, internet access, long distance and local telephone service, and maintain the compatibility of such equipment and software with the Services during the Term of this Agreement; (e) not use the Services: (i) in any manner which interferes unreasonably with the Services or CSCI’s provision of similar services to other parties; (ii) for any purpose or in any manner directly or indirectly in violation of applicable laws or industry standards; or (iii) in violation of any third party rights. Client acknowledges and agrees that CSCI is not responsible for any support or maintenance, or problems or technical malfunction, of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software or cloud-based solutions, not expressly included in the Services. Any delays due to the acts or omissions of Client or any User will be a billable event and may give rise to additional technician time and expenses billed to Client.
2.6 Compliance with Laws. Client acknowledges and agrees that it is solely Client’s, and not CSCI’s, responsibility to comply, and Client shall comply, with all laws, regulations and standards, including, without limitation, data protection and information security laws or regulations, applicable to its business.
2.7 Changes to Services. CSCI may change the Services upon thirty (30) days’ notice to Client, but any such change shall not materially degrade the Services during the then-current Initial Term or Renewal Term.
3.0 FEES AND CHARGES: BILLING: PAYMENT: TAXES.
3.1 Fees and Charges. During the Term, Client shall pay to CSCI the fees, charges and expenses set forth in Exhibit A-G, all Quotation(s) and otherwise payable under this Agreement. All fees, charges and expenses are non-refundable.
3.2 Travel and Living Expenses. Client shall reimburse CSCI for reasonable travel and living expenses incurred by CSCI in connection with the Services. Such expenses are subject to Client’s prior written approval.
3.3 Currency. All monetary amounts stated herein are in United States Dollars and shall be paid from within the United States, unless expressly stated otherwise.
3.4 Changes. CSCI may change the fees and charges for the Services effective at the start of any Renewal Term by providing Client ninety (90) days prior written notice of such changes. Client may, if such fee and charge changes are not acceptable, terminate this Agreement effective as of the end of the then-current Initial Term or Renewal Term by giving written notice to CSCI at least sixty (60) days prior to the end of such Initial Term or Renewal Term, as applicable.
3.5 Billing and Payment. All amounts shall be due and payable by credit card at the time of invoice on the first of each month. All amounts not paid by the due date thereof shall be subject to a service charge of the lower of two percent (2%) per month or the highest rate under applicable law. Should Client have a good faith dispute concerning an amount invoiced, Client shall pay the undisputed portion of the invoice and promptly notify CSCI in writing of the amount and nature of the dispute. The parties shall cooperate in good faith to resolve the dispute.
3.6 Services Suspension. Any failure by Client’s to pay any amount when due may result in suspension of the Services. A reinstatement fee shall apply for all Services suspensions equal to ten percent (10%) of the amount past due. Services shall be reinstated upon receipt of such reinstatement fee, any late charges, and all other sums due. Any suspension or reinstatement of Services shall be without prejudice to CSCI’s other rights and remedies under this Agreement.
3.7 Taxes. All prices, fees and charges are exclusive of all applicable federal, state, provincial and local taxes including, without limitation, sales, use, property, value added, goods and services, excise, withholding and similar taxes, and all such taxes shall be assumed and paid by Client, excluding taxes on CSCI’s net income.
4.0 TERM AND TERMINATION.
4.1 Term of Agreement. This Agreement shall commence on the Effective Date and, unless earlier terminated for cause under Section 4.2 or as otherwise as provided in this Agreement, shall continue for the Initial Term and any Renewal Term(s) (collectively, the “Term”). The “Initial Term” shall commence on the Effective Date and continue thereafter for twelve (12) months. After the Initial Term, the Term shall automatically renew for successive twelve (12) month renewal periods (each a “Renewal Term”), beginning on each following anniversary of the Effective Date, unless either party has provided written notice of termination of this Agreement to the other party at least thirty (30) days prior to the end of the Initial Term or current Renewal Term, as applicable.
4.2 Termination for Cause. This Agreement may be terminated upon written notice: (i) from CSCI in the event of Client’s failure to pay fees or other charges when due; (ii) from a party if the other party breaches any material term or condition of this Agreement (other than payment obligations) and such failure is not cured within thirty (30) days of written notice from the non-breaching party specifying the non-performance; (iii) from a party, if any proceedings under the U.S. Bankruptcy Code or other insolvency laws shall be instituted by or against the other party, or if a receiver shall be appointed for the other party or any of its assets; or (iv) from a party if the other party shall make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts as they come due.
4.3 Effects of Termination. Upon termination of this Agreement: (i) CSCI shall cease to provide all Services; (ii) Client shall immediately pay all fees and charges owed hereunder; and (iii) each party shall destroy or promptly return to the other party all of such party’s Confidential Information (as defined in Section 5.1), including without limitation, all copies, partial copies and any documentation or materials evidencing the other party’s Confidential Information. In the event of termination of this Agreement other than for cause under Section 4.2, CSCI will use commercially reasonable efforts for a thirty (30) day period following termination to assist Client in the orderly termination of Services, including timely transfer of the services to another designated provider, provided that Client agrees to pay CSCI for the actual costs of rendering such assistance at CSCI’s then-current rates. Any termination for cause under Section 4.2 shall be without prejudice to any other rights or remedies which CSCI may have against Client, and shall not entitle Client to a refund, in whole or in part, of any fees or charges. No remedy referred to in this Section is intended to be exclusive but shall be cumulative and in addition to any other remedy referred to herein or available to CSCI at law or in equity.
5.0 CONFIDENTIALITY.
5.1 Confidential Information. Each party (the “Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”). “Confidential Information” shall mean that information the Receiving Party receives from the Disclosing Party which is marked as confidential or is reasonably understood to be considered confidential from its nature or from the circumstances surrounding its disclosure.
5.2 Nondisclosure; Use Restrictions. The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence using the same degree of care to avoid disclosure or unauthorized use as it uses for its own confidential, proprietary and trade secret information, but in no case less than a reasonable degree of care. All Confidential Information of the Disclosing Party shall be used by Receiving Party only in connection with performing its obligations under this Agreement and shall only be disclosed to those individuals who must necessarily receive the Confidential Information to enable performance under this Agreement and are legally bound by non-disclosure and non-use restrictions consistent with this Section 5.0. If either Party becomes aware of an unauthorized disclosure of the other Party’s Confidential Information, it shall immediately notify the other Party.
5.3 Exclusions: Court Orders. The forgoing obligations shall not apply to information that (i) was in the public domain at the time it was disclosed; (ii) becomes part of the public domain without breach of this Agreement; (iii) is disclosed with the Disclosing Party’s written approval; (iv) was independently developed by the Receiving Party; or (v) is disclosed pursuant to the provisions of applicable law, regulation or court order. If the Receiving Party is required by government or court order to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall promptly notify the Disclosing Party of such request so the Disclosing Party may seek a protective order.
6.0 INTELLECTUAL PROPERTY. With the exception of equipment transferred to Client in connection with the Services, CSCI and its vendors and suppliers retain all right, title and interest in the Services and all derivatives, improvements and modifications thereto, and all related intellectual property rights therein and newly created in the future, and Client shall not have or obtain any title, ownership or other proprietary interest therein. CSCI shall not acquire any right, title or interest in Client’s proprietary information which may be transmitted or otherwise managed via the Services.
7.0 LIMITED WARRANTY; DISCLAIMER.
7.1 Warranty; Remedy. CSCI shall use commercially reasonable efforts consistent with prevailing industry standards to provide the Services in a professionally diligent manner. CSCI’s sole obligation and liability and Client’s sole and exclusive remedy under the foregoing limited warranty are strictly and exclusively limited to either the correction of any error(s) in the Services which are made known to CSCI by written notice from Client given within fifteen (15) days of such error(s) describing such error(s) in detail or, at the election of CSCI, a pro rata refund of the fees paid by Client for the particular portion of the Services which is in error.
7.2 Limitations. The warranty under Section 7.1 does not apply to any error(s) in the Services resulting from any: (a) Third Party Products; (b) use of any Services not in accordance with this Agreement, including Client’s operation or use of the Services other than in accordance with applicable documentation or design, or with hardware, software or other technology not recommended, supplied or approved by CSCI; (c) modification, damage, misuse of any Services or other action of Client or any third party; or (e) combination of any Services with any goods, services or other items provided by Client or any third party.
7.3 General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7.0, THE SERVICES, THIRD PARTY PRODUCTS AND ANY OTHER ITEMS PROVIDED BY CSCI ARE PROVIDED “AS IS”. CSCI DOES NOT MAKE AND DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES, THIRD-PARTY PRODUCTS, OR ANY OTHER ITEMS FURNISHED BY OR ON BEHALF OF CSCI UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS AND ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
7.4 Malicious Code, Security Threats, Non-Interruption Disclaimers, etc. NEITHER CSCI NOR ITS LICENSORS OR SUPPLIERS WARRANT THAT THE SERVICES: WILL BE FREE FROM INTERRUPTION OR FAILURE; WILL BE ERROR OR BUG FREE OR FREE FROM MALICIOUS CODE; WILL DETECT ALL SECURITY THREATS, VIRUSES, UNWANTED CONTENT OR MALICIOUS CODE; WILL DETECT EVERY SECURITY VULNERABILITY OR KEEP CLIENT’S NETWORK OR COMPUTER SYSTEMS SAFE OR SECURE FROM INTRUSIONS OR OTHER SECURITY BREACHES OR SECURE FROM UNAUTHORIZED ACCESS; OR WILL BE CONTINUOUSLY AVAILABLE. THE SERVICES MAY BE UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING SCHEDULED OR UNSCHEDULED MAINTENANCE, TECHNICAL FAILURE OF THE SOFTWARE OR SERVICES, TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET. CLIENT IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF CLIENT’S DATA AND SYSTEMS.
7.5 Third Party Products. Client’s remedies with respect to Third Party Products will be limited to such recourse may be available to Client against the third-party provider of such Third-Party Products under the applicable Third-Party Agreements or otherwise.
8.0 INDEMNIFICATION. Client agrees to defend, indemnify and hold harmless the CSCI Parties (as defined in Section 9.1) from and against all claims, actions, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) arising or resulting from or in connection with (i) Client's handling, storage, transmission. loss, disclosure or possession of information, data (including personal and financial data of consumers, customers, employees and others), messages or other content or assets, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission or possession of information that contains viruses, malware or other destructive code, media, or any unlawful content; (ii) third parties' reliance on the Services or on information obtained therefrom; (iii) Client's breach of any software licensing or other requirements of third parties, including without limitation, under Third Party Agreements; (iv) Client's failure to comply with or breach of any provision of this Agreement; (v) Client's failure to obtain permits, licenses, or consents that Client may be required to obtain to enable CSCI to provide Services; (vii) Client’s modification of the Services or Client’s use of such Services other than in accordance with their specifications and documentation; and/or (viii) Client’s breach of this Agreement or failure to comply with all laws, regulations and standards applicable to its business.
9.0 LIMITATIONS OF LIABILITY.
9.1 Liability Limitation. THE CUMULATIVE LIABILITY OF CSCI, ITS SUPPLIERS (INCLUDING SUPPLIERS OF THIRD PARTY PRODUCTS) AND SUBCONTRACTORS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES (COLLECTIVELY THE “CSCI PARTIES”) FOR ANY AND ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, RESULTING FROM OR CONNECTED WITH THIS AGREEMENT OR THE SERVICES, SHALL NOT EXCEED THE LESSER OF (I) CLIENT’S ACTUAL DIRECT DAMAGES ARISING THEREFROM, OR (II) THE FEES PAID BY CLIENT DURING THE THREE (3) MONTHS PERIOD PRECEEDING THE FIRST SUCH CLAIM, FOR THE SPECIFIC SERVICES THAT ALLEGEDLY GAVE RISE TO THE CLAIM.
9.2 No Consequential Damages. IN NO EVENT SHALL THE CSCI PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOST BUSINESS, LOST PROFITS AND OTHER ECONOMIC DAMAGES, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages exists for the purpose of allocating the risks of this Agreement between the parties. The pricing that CSCI offers Client reflects this allocation and constitutes an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 9.0 apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
10.0 MISCELLANEOUS.
10.1 Export control laws. CSCI’s responsibility for delivery is limited to the delivery of the Services to Client in the United States. CSCI will not be responsible for obtaining any export licenses or re-export licenses which may be required for any subsequent shipping of the Services and Client shall not export or re-export the Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
10.2 Notices. All notices, requests, demands or other communications, other than routine operational communications required or permitted to be given by one party to the other shall be given in writing and sent (postage prepaid with return receipt or delivery confirmation requested) by registered mail, certified mail, or by nationally recognized courier service (e.g. Federal Express, UPS, etc.), and shall be delivered addressed as set forth on the first page hereof, or to such other address as either party may notify the other in accordance with the Section. Such notices, requests, demands or other communications shall be deemed to have been received upon delivery thereof as evidenced by return receipt or delivery confirmation.
10.3 Independent Contractors. The relationship of the parties created by this Agreement is that of independent contractor and not that of employer/employee, principal/agent, partnership, joint venture or representative of the other.
10.4 Excusable Delay. Neither party will be liable for any failure of or delay in the performance of its obligations under the Agreement to the extent due to a condition beyond its reasonable control including, without limitation, nature disaster, fires, wars, riots, accidents, government action or failure to act, inability to obtain labor, materials or equipment, power shortage, equipment failure or breakdown, or failure of communications infrastructure (collectively “Excusable Delay”). Each party will use reasonable commercial efforts to minimize the duration and consequences of any Excusable Delay.
10.5 Assignment. Client shall not assign this Agreement, whether by merger, change of control or otherwise, without the prior written consent of CSCI. This Agreement shall be binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
10.6 Waiver; Severability. Any delay or failure by a party to enforce any provision hereof will not constitute a waiver of its rights to enforce such provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement will be construed as if such provision were deleted.
10.7 Governing Law. This Agreement is to be construed according to the laws of the State of California and the United States of America, excluding the provisions of the United Nations Convention on Contracts for the international Sale of Goods and any conflict of law provisions that would require application of another choice of law. No action arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued.
10.8 Survival. The terms and conditions of this Agreement regarding payment, ownership of intellectual property, nondisclosure and non-use of Confidential Information, warranty, disclaimers, indemnification, liability limitation, and all others that by their sense and context are intended to survive the execution, performance, and termination of this Agreement, shall survive termination of this Agreement and continue in effect.
10.9 Headings. Section heading are for convenience only and will not be construed as a part of this Agreement.
10.10 Entire Agreement; Amendment. This Agreement, including all exhibits, Quotations, schedules, attachments, addenda and addendums hereto, constitutes the complete and exclusive statement of the terms hereof, and supersede all prior and contemporaneous oral and written statements of any kind made by the parties or their representatives with respect to the subject matter hereof. It is expressly agreed that if Client issues a purchase order or other document in connection with this Agreement, such document will be deemed to be for Client’s internal use only and any provisions contained therein shall not amend or be used in interpreting this Agreement. This Agreement may only be amended by a writing signed by authorized representatives of the parties.
10.11 Counterparts; Electronic Copies. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. For the purposes hereof, a facsimile or scanned copy of this Agreement, including all pages hereof, shall be deemed an original.
10.12 Arbitration. The parties shall use good faith efforts to cooperatively resolve disputes and problems that arise in connection with this Agreement. If CSCI’s and Client’s managers who are primarily responsible for daily activities hereunder are unable to expeditiously resolve any dispute or problem, the dispute shall be resolved exclusively by final and binding arbitration under the rules of JAMS [www.jamsadr.com] or its successor. The arbitration hearing shall be held in San Diego, California. The arbitration and all pleadings, hearings and communications relating thereto shall be confidential. Either party shall have the right to appeal to an appellate arbitration panel under the rules of JAMS or its successor. The prevailing party in the arbitration shall be entitled to recover its reasonable legal fees and other costs related to the arbitration, including expert fees, arising out of or relate to the enforcement or interpretation of this Agreement.
10.13 Non-Solicitation of Employees. Client agrees that it will not solicit or offer employment to the CSCI’s employee(s) or sub-contractor(s), whether directly or indirectly, within one (1) year of the termination of this Agreement, except with CSCI’s prior written approval in each case.
