SaaS Agreement
This Software as a Service (“SaaS”) Agreement (“Agreement”) is between Subscriber and Civilio AI, Inc. (“Licensor” or “Civilio”), located at 820 S. Myrtle Avenue, Monrovia, CA 91016, and is effective as of the date the Subscriber signs up for Services. For purposes of this Agreement, Subscriber and Licensor each will be referred to individually as a “Party” and together as “the Parties.”
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Definitions
“Agreement” shall mean these terms and conditions, and any written amendments signed by both Parties.
“Authorized Users” shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service and identified on an applicable account.
“Billing Start Date “ shall mean the date identified on the Order Form as the data from which billing shall be calculated (which under no circumstances shall be later than the Service Start Date, as defined below).
“Display Devices” shall mean the display device of an Authorized User used to access, display, and use the Service.
“Service” shall mean Civilio’s applications subscribed to by Subscriber hereunder, including but not limited to the Civilio.ai website (the “Site”), the CIVILIO software, and other interactive features of the email, and database services or other designated websites or IP addresses identified via the Civilio website, including associated documentation made available to Subscriber in written form or online, subscribed to by Subscriber hereunder.
“Service Start Date” shall mean the date from which Subscriber first receives the applicable Service or as identified on an applicable account, whichever is earlier.
“Fees” shall mean the fees payable pursuant to Section 3 hereof.
“Office” shall mean the address(es) of Subscriber’s office(s) in which an Authorized User’s Display Device is located, as identified on an applicable Order Form.
“Order” shall mean an original or renewed request for information applicable to Subscriber’s access and use of the Service. Each Order (whether initiated automatically from a prior inquiry or not) is hereby incorporated into this Agreement in its entirety by this reference. An Order will take precedence over any other provision of this Agreement, provided that any conflict or inconsistency in an Order with any other provision of this Agreement will only apply to that specific Order.
“Subscriber,” “You” and “Your,” as used in this Agreement, shall mean the person that registers for, accesses, or uses the Site, Platform, or Services. If you access any of the Services on behalf of an entity or other individual, you represent and warrant that you have the authority to bind that entity or individual. This Agreement forms a contract between you and Civilio, and if you are using the Site or Services on behalf of an entity or organization, such entity or organization will also be considered a party to this Agreement.
“Subscriber Data” means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to Licensor in connection with this Agreement, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Service (including use by any Authorized User).
“Subscriber Marks” shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
“Term” shall mean the period beginning on the Effective Date and ending on the date the last Order in effect terminates or expires, as applicable.
License to Receive the Service
Grant. Civilio hereby grants the Subscriber identified on the account a limited, revocable, non-exclusive, non-assignable and non-transferable license, without right of sublicense, during the Term to access, display, and use on Subscriber’s Display Devices within the United States, the Service, and to permit Authorized Users to access and use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved by Civilio.
Scope. The license granted to Subscriber hereunder is solely for Subscriber’s internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User. Each Authorized User may access, display, and use the Service on only one Display Device at a time. Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users identified on the account. Subscriber may add additional Authorized Users through functionality in Subscriber’s Account or by creating a new account. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Civilio promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. Nothing in this Agreement shall obligate Licensor to continue providing access to any Service beyond the date when Civilio ceases providing such Service to subscribers generally.
Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices, if applicable. Note that current law may not allow the vesting of intellectual property rights in AI-generated content. Subscriber may not, and may not permit others to (including any Authorized User):
Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Service;
Distribute, sublicense, rent, lease, loan [or grant any third-party access to or use of] the Service to any third party;
Harvest, collect, gather, or assemble information or data regarding other subscribers;
Transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
Interfere with or disrupt the integrity or performance of the Service or the data contained therein;
Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or
Harass or interfere with another subscriber or end-user’s use and enjoyment of the Service.
Fees and Payment
Service Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under this Agreement, commencing on the Service Start Date, Subscriber shall pay Licensor the Fees identified in the sign-up page, plus any other applicable fees, costs, and expenses identified on the Site. Unless otherwise set forth in the account, all Fees are payable in advance on a monthly or annual basis and are based on the Services and the number of Authorized Users identified for the account. Subscriber shall inform Licensor of any increases in the number of Authorized Users no later than seven (7) days after the date of such increase and the account and this Agreement will be deemed amended accordingly.
Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, Licensor shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.
Taxes. Subscriber will be responsible for, and will promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by Licensor to Subscriber, or the amounts payable to Licensor therefore.
Professional Services
During the Term, Subscriber may request Licensor to perform professional services in the nature of software development, customization add-in, documentation, training, testing, integration services, and any other similar services that Licensor may offer (hereinafter, “Professional Services“). Upon receipt of a request, Licensor may provide Subscriber with a written proposal, and when the Parties agree to all requirements and specifications of the proposed Professional Services, a Task Order for the Professional Services will be created as an amendment to this Agreement. All Task Orders shall be subject to the terms and conditions of this Agreement and the Terms of Service, unless otherwise set forth in the Task Order. Services performed by Licensor are not exclusive to Subscriber, and Licensor may perform services of any type or nature for any other person or entity at any time.
Access
Service. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Service. Except as expressly stated herein or on an applicable Order Form, Subscriber is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company) to access and/or use the Service; (ii) allow access to or use of the Service outside of the United States of America (including any Authorized User).
Delivery and Acceptance. Licensor will make the Service available to Subscriber as indicated on the Order Form. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (“Corrections“) to the Service will be deemed accepted by Subscriber on the day such Corrections are first made available to Subscriber or accessed by Subscriber, whichever is earlier.
Reports and Records
Subscriber shall maintain accurate records containing the following information, copies of which Licensor shall be entitled to receive upon seven (7) days prior written notice to Subscriber: (i) the address of each Office where at least one Display Device is located; (ii) the total number of Display Devices and Authorized Users at each Office; and (iii) the Service(s) received by each Authorized User on each Display Device. No Display Device may be accessed on a regular basis by more than one Authorized User unless additional fees for such access have been agreed to in writing by the parties hereto in the applicable Order Form. Licensor may, upon prior written notice to Subscriber, reasonably request Subscriber to maintain records containing additional information related to the Service and Subscriber’s use thereof. In addition, Licensor may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Service, as Licensor deems reasonably necessary, in order to determine Subscriber’s compliance with the terms of this Agreement.
Audits and Inspections
For the purpose of verifying compliance with this Agreement, Licensor (and Licensor’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit and inspect from time-to-time Subscriber’s offices, books, and records relevant to the Service and to observe the use made of the Service and the manner in which each Display Device and Authorized User accesses the Service. If such audit or inspection pursuant to this Section indicate that Subscriber is not in compliance with this Agreement, such as more Authorized Users accessing the Service than permitted and/or purchased by Subscriber under an applicable account, Subscriber shall pay Licensor the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Order Form). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Subscriber shall reimburse Licensor for Licensor’s reasonable costs associated with such audit or inspection.
Mergers and Acquisitions
For the purpose of calculating the Fees, it is not the parties’ intention that the Fees charged under this Agreement will include Display Devices, Authorized Users, and/or Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in Subscriber’s ownership or control of Display Devices formerly owned or controlled by another entity, or additional Authorized Users and/or Services being acquired, such additional Display Devices, Authorized Users, and/or Services will not be covered by the Fees charged under this Agreement. Subscriber agrees that such Display Devices, Authorized Users, and Services shall be subject to additional fees, based upon the then-current listed price for the additional Display Devices, Authorized Users, and/or Services resulting from the acquisition or merger. For the avoidance of doubt a merger and/or acquisition shall not entitle Subscriber to terminate this Agreement other than in accordance with the terms herein.
Copyright Protection; Use Restrictions; Subscriber License Grant
Subscriber agrees that the Service and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors. The works and databases included in the content of the Service are protected by applicable copyright laws. Other than as expressly set forth in this Agreement, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Subscriber, and all such rights are hereby expressly reserved by Licensor.
Our Services allow Users to access User Content, which may be processed, transmitted, hosted, shared, or published through our Services to generate and return generated content (“Generated Content” and, together with any User Content, collectively, “Content”). We do not claim any ownership in or to any User Content except as stated in this Agreement, the Terms of Service or our other Policies. However, by transmitting Content through our Services, you hereby grant us, and our licensors, licensees, successors, assigns, and affiliates, a perpetual, non-exclusive, freely transferable and sublicensable, irrevocable, worldwide, royalty-free license to use, host, aggregate, commercially exploit, display, store, copy, distribute, publish, perform, and modify or create derivative works based upon such Content, to the extent necessary for us to provide, perform, operate, market, secure, and deliver our Services or Platform, comply with applicable law, and enforce this Agreement, our Terms of Service and our other Policies. We make no representation or warranty that any Content is accurate, complete, or will be kept confidential. Subject to the terms and conditions set forth in these Terms of Service and our other Policies, we hereby grant you a non-exclusive license to use, host, display, store, copy, distribute, publish, and modify or create derivative works based upon the Generated Content generated from your User Content through our Services, provided, however, that we, and our, licensors, licensees, successors, assigns, and affiliates retain all right, title, and interest in Generated Content, to the extent not inconsistent with the license granted herein.
Notwithstanding the foregoing, we may make available other content through our Services or on our Platform that is subject to the intellectual property rights of us or a third-party, and we (or such third-party) reserve all rights in such content. You hereby acknowledge and agree that Users may input similar User Content that may generate the same or similar Generated Content, and you will not acquire any rights in such Content.
Once set up, the CIVILIO AI will independently continue to generate news about any subject, in any style, in perpetuity. Licensor shall preserve source data, search inquiries, plagiarism filters, sentimentality, and quality of information for Subscriber’s human editors to review and verify prior to publication. Licensor shall not claim any ownership over such Generated Content for purposes of republication or assertion of intellectual property rights against Subscriber, but shall maintain such data for archival and quality control purposes only. Licensor strongly encourages Subscribers to initiate human review of all Generated Content prior to any further publication, which may include independent review and fact-checking of all content generated by CIVILIO prior to use or publication, and further suggests, for transparency, that Subscribers disclose the use of artificial intelligence to generate content.
While Licensor asserts any applicable legal or equitable rights to work product for content generated by the Service, Licensor does not claim intellectual property rights or ownership for Generated Content, based on the current state of the law. Where barred by applicable law, Subscribers are also prohibited from claiming their own intellectual property rights or ownership over any verbatim Generated Content generated by the Service. Some jurisdictions may allow for limited intellectual property rights over such content, and Subscriber agrees to review applicable law and determine whether it has sufficient basis to assert intellectual property rights or ownership over such content. Subscriber agrees that it shall indemnify, defend, and hold harmless Licensor (as set forth below) for any claim by Subscriber or a third party of intellectual property rights based on Generated Content.
Subscriber agrees that only Authorized Users shall be permitted access to the Service as set forth in the account. Except as set forth herein or in an amendment to this Agreement, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.
Subscriber hereby grants to Licensor a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Subscriber Data as necessary to provide the Service in accordance with this Agreement. Subscriber Data submitted by Subscriber to the Service, whether posted by Subscriber or by an Authorized User, remains the sole property of Subscriber and Subscriber reserves all right, title, and interest in the Subscriber Data. Notwithstanding any other provision in this Agreement, Licensor may collect and provide certain Authorized User registration and statistical information, such as usage or Authorized User traffic patterns, in aggregate and anonymized form to third parties, provided that such information does not identify any Authorized User or Subscriber and contains no personally identifying information. Licensor may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
Subscriber hereby grants Licensor a non-exclusive, non-transferable, and royalty-free license to use Subscriber Marks for the limited purposes set forth in this Agreement, including as necessary for Licensor’s performance under this Agreement, to deliver the Service in accordance with this Agreement, and in marketing materials related to the Service.
Licensor will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and Licensor will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf.
Warranties; Disclaimer
Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under this Agreement, having obtained all required Board of Directors’ or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Indemnification
Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor’s use of any Subscriber Data, Subscriber Marks, or other information or materials provided by Subscriber in connection with this Agreement.
For purposes herein, a Party, when providing indemnification, will be termed an “Indemnifying Party” and a Party, when receiving the benefits of indemnification, shall be termed an “Indemnified Party.” The term “Indemnified Party” will include the other Party’s respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party’s obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party’s sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
In the event a court of competent jurisdiction makes a determination that the Service infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Licensor determines that the Service likely infringes or otherwise violates such third party’s foregoing intellectual property rights, Licensor, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Service so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating Service, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Subscriber to continue using the allegedly infringing or violating portion of the Service; or (d) terminate the Service or revoke the license to the allegedly infringing or violating Service and provide a pro rata refund to Subscriber for all fees prepaid for the Service and not yet earned by Licensor.
Licensor will have no obligation under this Agreement relating to any indemnification if a Subscriber Claim results from any of the following: (i) Subscriber’s continued use of the infringing or violating Service after Licensor first makes an applicable Correction available to Subscriber; (ii) Subscriber’s modification of the Service (including a third party acting on its behalf); or (iii) Subscriber’s use of the Service in any manner other than as permitted under this Agreement.
Limitation of Liability
LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS (“LICENSOR PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, EXCEPT FOR LICENSOR’S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 11, EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY LICENSOR INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 11, IN NO EVENT WILL THE LIABILITY OF LICENSOR PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THREE TIMES THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LICENSOR PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
Term; Termination
This Agreement shall be effective for the Term, unless terminated earlier in accordance herewith. Modifications in any ongoing Fees in connection with the Service shall be communicated to Subscriber no later than thirty (30) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Order Form. This Agreement, including all Order Forms and Task Orders, may be terminated as follows: (a) if either Party commits a material breach of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching Party (“Notice of Breach“), the Party giving such notice may then deliver a second written notice to the breaching Party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; or (b) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. If this Agreement is terminated before the end of its then-current term (as identified on the applicable Order Form or Task Order) for any reason other than by Subscriber under the foregoing clauses (a) or (b) in this Section, then Subscriber will pay to Licensor as liquidated damages, with respect to an Order Form, the amount due by Subscriber for the previous calendar month times the number of months remaining in such Term (as identified on the applicable Order Form), or with respect to a Task Order, the Total Estimated Fees plus any additional amounts due by Subscriber under the applicable Task Order (“Liquidated Damages“) within 30 days after such termination. The parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor, such notice will be deemed to be a Notice of Breach.
Confidentiality
Subscriber and Licensor understand and agree that in the performance of this Agreement each Party may have access to private or Confidential Information of the other Party, which either is marked as “confidential,” or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under this Agreement. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party’s possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. If either Party elects to file this Agreement with the U.S. Securities and Exchange Commission or any other securities exchange or market, regulatory authority or other body, the filing Party will provide the non-filing Party with no less than five (5) business days’ notice before the expected date of the filing (the “Filing Date“), and a copy of the Agreement marked to show the sections for which the filing Party plans to seek confidential treatment. The filing Party agrees to expand its confidential treatment request to include those provisions of this Agreement reasonably indicated by the non-filing Party before the Filing Date as provisions for which the non-filing Party requests confidential treatment. All Confidential Information will remain the exclusive property of the disclosing Party. No public announcement, press release, or communication concerning this Agreement shall be made without the prior consent of the other Party.
Each Party to this Agreement will immediately notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Confidential Information of the other Party. Upon termination or expiration of this Agreement, upon written request of the other Party, or when no longer needed by either Party for fulfillment of its obligations under this Agreement, each Party will either: (a) promptly return to the other Party all documents and other tangible materials representing the other Party’s Confidential Information, and all copies thereof in its possession or control; or (b) destroy all tangible copies of the other Party’s Confidential Information in its possession or control by the following methods. Notwithstanding the foregoing, each Party’s legal counsel may retain one copy of the disclosing Party’s Confidential Information for its files solely to provide a record of such Confidential Information for archival purposes. If either Party should breach or threaten to breach any provision of this Section of the Agreement, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this Agreement. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Confidential Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the non-prevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorneys’ fees, associated with resolving the dispute. For purposes of this Agreement, “Confidential Information” means any valuable, non-public business information, including this Agreement and all matters discussed relating to this Agreement, [and any personally identifiable health, medical, employment, and similar private personal information], that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party’s business and industry.
Dispute Resolution; Class Action and Jury Trial Waiver
With respect to any and all disputes arising out of or in connection with this Agreement, the Parties agree to first negotiate in good faith and undertake reasonable efforts to cooperate with one another to achieve a mutually satisfactory resolution. If the Parties do not resolve any dispute by informal negotiation within 60 days, then either of the Parties may, by notice to the other, demand mediation under the supervision of JAMS (“JAMS”) in Los Angeles, California.
If settlement is not reached within 90 days after service of a written demand for mediation (which time can be extended with the agreement of both parties in writing), any unresolved controversy or claim will be resolved by initiating binding arbitration in accordance with the rules of JAMS before a single arbitrator in Los Angeles, California. The expenses of the arbitration will be shared equally by the Parties unless the arbitration determines that the expenses will be assessed in a different way, and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, conducted expeditiously. Both Subscriber and Licensor understand that they are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and neither Party will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in an arbitration proceeding, regardless of any statute or law to the contrary. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of this section remaining in full force and effect.
Subscriber agrees that Licensor is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these Terms pending a final arbitral decision, and the Parties understand that they are NOT required to arbitrate any dispute in which either Party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. Any disputes that are not handled by arbitration shall be filed only in the state and federal courts located in Los Angeles County, California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
Miscellaneous
Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, by facsimile, or by email with confirmation by the above-described mailing methods to the address(es) set forth in this Agreement, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.
Amendment. This Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and Licensor.
Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.
Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of this Agreement, will survive the termination or expiration of this Agreement, and remain binding upon and for the benefit of the Parties hereto.
Independent Contractor. Licensor is acting in performance of this Agreement as an independent contractor.
Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.
Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
Choice of Law. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications, or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of California, United States of America (“California”), applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles.
Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of Licensor.
Entire Agreement. This Agreement, along with the Terms of Service, contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed an original and all of which will constitute the same instrument.
Non-Solicitation. Each Party agrees that, during the term of this Agreement and for twelve (12) months thereafter (“Restricted Period”), it will not, directly or indirectly, solicit or induce any employee of the other Party to consider or accept employment with the first Party. Neither Party is prohibited from responding to or hiring employees of the other Party who inquire about employment with the first Party on their own accord or in response to a public advertisement or employment solicitation in general.
Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of this Agreement will be more strictly construed against one Party than against the other.
Legal Counsel. Each Party acknowledges that it has had the right to seek independent legal counsel with respect to this Agreement. No provision hereof will be construed against one Party by virtue of the fact that such provision was drafted by such Party.