Updated May 13, 2022
WHEREAS, the Company and its Affiliates have a cohesive, integrated suite of software called CogniSure AI Platform that converts data from unstructured documents in PDF, Excel, Word, scanned documents, and other similar documents into a structured format and analyzes such data.
WHEREAS, Customer wishes to subscribe to CogniSure AI Platform, delivered as a service, and may also acquire professional services (collectively, the “Services”) from Company, as set out in a Statement of Work (“SOW”); and
WHEREAS, the Company is willing to make such software available and to provide such Services under these terms and conditions of this Agreement, which includes the Schedules and any applicable future SOW.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable considerations, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
Definitions: For this Agreement, capitalized terms are defined in Schedule 1.
1.1 References: References to this Agreement include the Schedules and SOWs hereto, and references to the SOWs include this Agreement and Schedules thereto.
1.1.1 Except where otherwise indicated, all references in this Agreement to a SOW means the SOW under which the applicable Services are provided.
1.2 Headings: The Article and Section headings are for reference and convenience only and shall not be considered in the interpretation of the Agreement.
1.3 Agreement Framework:
1.3.1 This Agreement establishes the general terms and conditions applicable to the Company’s provision, and Customer’s use and access of, the Services contemplated by this Agreement. Both Customer and Company are responsible for the performance, or non-performance, of their respective Affiliates of the obligations under the Agreement.
1.3.2 This Agreement contemplates the future execution under this Agreement, under the terms and conditions of this Agreement, by Customer and Company, of one or more SOW for Services. Each SOW is effective when executed by an authorized representative of the Customer and an authorized representative of the Company. The terms of this Agreement shall be deemed to be incorporated into each SOW and the terms and conditions outlined in this Agreement shall govern the Company’s provision of Services under the Agreement, except for provisions in this Agreement that are specifically excluded or modified in such SOW, which shall include a reference to the applicable Section in this Agreement being excluded or modified, as approved by an authorized representative of the Customer and an authorized representative of the Company.
1.3.3 Except as provided for under the terms of this Agreement or SOW, this Agreement is non-exclusive and in no way limits or restricts Company’s ability to provide any services to any other customer, including services which are similar to the Services provided herein.
2.1 The Services are set out in SOW # 1. From time to time, subsequent SOWs may be agreed in writing by the Parties and will be in the form set out in SOW # 1. Upon execution by the Parties, each SOW will be incorporated into this Agreement.
2.2 Subscription Services
2.2.1 Provision of Subscription Services: The company will make the Subscription Services available to the Customer by this Agreement and the applicable SOW. Customers may access and use the Subscription Services by this Agreement and the applicable SOW.
2.2.2 Customer’s Responsibilities: The customer is solely responsible for the accuracy, quality and integrity of the Customer Data that the Customer provides to the Company. Customer will ensure that its employees, any third party service provider Customer engages and its employees, agents and representatives comply with Customer’s obligation under this Agreement and Customer is responsible for their acts and omissions relating to this Agreement as though they were Customer’s own. Customer agrees to indemnify, defend, and hold Company harmless from and against all third-party claims and liabilities relating to a breach of this obligation by Customer.
2.2.3 Customer’s Account: Customer will designate one of its employees to be the point of contact with the Company for the management and support of the Subscription Services, and who will be responsible for establishing and managing Customer’s use of the Subscription Services.
2.2.4 Suspension: The company may suspend Customer’s right to use Subscription Services immediately upon notice to Customer if the Company determines that Customer’s or its User’s, use of the Subscription Services (i) poses a security risk to the Subscription Services or any third party, (ii) may adversely impact the Subscription Services, or the networks or data of any other Company service provider, customer, or business partner, (iii) does not comply with applicable laws or regulations, or (iv) may subject Company or any other third party to liability. Company may terminate the Agreement if Customer fails to rectify such use within thirty (30) days of notification by Company.
2.3 Professional Services: Professional Services may be delivered by this Agreement and any applicable SOW. The Parties may enter into one or more SOWs that contain additional terms and conditions applicable to the provision of Professional Services.
3. PROPERTY RIGHTS
3.1 License by Company: Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable, limited license, without right to sub-license, for the Subscription Term to access and use the Subscription Services, solely for Customer’s internal business operations. Company reserves all other rights not expressly granted in this Agreement.
3.2 License by Customer: Subject to the terms and conditions of this Agreement, Customer hereby grants Company a non-exclusive, limited, royalty-free license, to use the Customer Material and the Customer’s logo as necessary for the Services provided herein. Customer reserves all other rights not expressly granted in this Agreement.
3.3 Limited License. Customer grants to Company a limited license to copy, transmit, store and back-up or otherwise access, use, or make reference to any Intellectual Property Rights in the Customer Data for the following purposes: (a) to supply the Services including to enable the Customer, or Users to access and use the Services; (b) for diagnostic purposes; (c) to test, enhance, and otherwise modify the Services whether requested by the Customer or not; (d) to monitor trends and/or create benchmarks to enhance Services; (e) to develop other Services; and (f) as reasonably required for the performance of Company’s obligations under this Agreement. Notwithstanding anything to the contrary, Customer agrees to grant to Company a worldwide, perpetual, irrevocable, royalty-free license to use its Customer Data in a de-identified, aggregated, or anonymized form for monitoring trends, creating benchmarks to enhance Services, and/or developing Company’s Services during the Term of this Agreement and after the termination or expiration of this Agreement.
3.4 License by Customer to Use Feedback. Customer grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services (including any Services not yet developed or created by Company) any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of Company’s Services.
3.5 Ownership of Intellectual Property Rights
3.5.1 Customer IP: Customer will retain: (i) all of its rights in the Customer Material and Customer Confidential Information; (ii) all Inventions owned, created, or conceived and reduced to practice by Customer or its other suppliers; (iii) any Deliverables concerning which the Parties agree that Customer is to be the owner, as explicitly agreed in a written document (such as an SOW) executed by Customer and Company (such deliverables are “Assigned Deliverables”); and (iv) all Intellectual Property Rights therein. Items (i) – (iv) are collectively referred to as “Customer IP”. Customer grants no licenses to Company to use the Customer IP except as expressly specified in this Agreement or an SOW.
3.5.2 Company IP: Company will retain: (i) all of its rights in the Company Confidential Information; (ii) CogniSure AI Platform, including all derivative works, improvements, modifications, or enhancements created or conceived by Company, its contractors or licensors; (iii) all Company Inventions owned, created, or conceived by Company including any Deliverables, except any Customer Assigned Deliverables as defined in Section 3.5.1; and (iv) all Intellectual Property Rights therein. Items (i) – (iv) are collectively referred to as “Company IP”. Company grants no licenses to Customer to use the Customer IP except as expressly specified in the Agreement.
3.6 License to Deliverables: Company hereby grants to Customer, subject to payment of all Fees, a non-exclusive, royalty-free, non-transferable license, without the right to sublicense, to use Deliverables provided by Company under this Agreement in Customer’s ordinary course of business, solely in conjunction with such Deliverables. The company reserves all other rights in and to the Company IP.
3.7 Restrictions: Customer will not: (i) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from Company; (ii) reproduce, modify, or prepare derivative work of any of Company Services or Documentation; (iii) distribute or display any of CogniSure AI Platform Deliverables or Documentation other than to Users; (iv) share, rent, or lease the Subscription Services, or use the Subscription Services to operate any timesharing, service bureau or similar business; (v) input, upload, transmit, or otherwise provide to or through the CogniSure AI Platform any information or materials Customer knows to be unlawful or injurious; and (vi) attempt to or override any security component included in or underlying the CogniSure AI Platform. The Parties agree and the Customer acknowledges that any breach of this Section 3.8 will be deemed a material breach of this Agreement.
3.8 Open Source Software: Some components of CogniSure AI Platform may also be governed by applicable open source software licenses located in the software component’s source code. Customer’s license rights concerning the individual components are defined by the applicable open source software license, and nothing in this Agreement will restrict, limit, or otherwise affect any rights or obligations Customer may have, or conditions to which Customer may be subject, under such open source software license.
3.9 Co-Marketing: Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on CogniSure’s website and in CogniSure promotional materials. The customer agrees that CogniSure may disclose the Customer as a customer of CogniSure.
4.1 Fees: The company will invoice Customer (i) Subscription Services, annually in advance, and Usage charges, once per calendar month, at the rates specified in an applicable SOW; and (ii) Professional Services, once per calendar month, provided by the Company in the preceding month, billed at the rate specified in the applicable SOW. Except as expressly set out in the applicable SOW, Customer shall pay for the fees for the Annual Subscription Term on the Effective Date, and annually thereafter.
4.2 Expenses: Except as expressly stated otherwise in any SOW, Company will invoice the Customer once per calendar month for expenses reasonably incurred by the Company in connection with the Company’s provisioning of Services. Such expenses will be limited to those contemplated under the applicable SOW or otherwise agreed to in writing by the Parties as being the responsibility of the Customers. The company will submit the expense to the Customer in reasonable detail.
4.3 Payment Terms: The company will direct invoices for payment of fees and expenses for the Services to the Customer representative designated by the Customer under this Agreement or applicable SOW. Except as expressly stated otherwise under this Agreement or applicable SOW, Customer will pay Company’s fees and expenses invoiced by this Section 4 within thirty (30) days of receipt of invoice. Without limiting any other rights or remedies Company may have, any amount not paid when due will be subject to interest equal to the higher of: (i) 1.5% per month of the overdue amount; or (i) the highest lawful rate allowed by applicable law. Such interest shall accrue daily from the due date until the actual payment of the overdue amount, whether before or after judgement. In addition to any interest due under this Section 4.3, Customer shall reimburse any cost or expenses (including, but not limited to any penalties, charges and legal and other reasonable professional costs and expenses) incurred by Company to collect any amount that is not paid when due. Either Party may accept any check or payment in any amount without prejudice to such Party’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States Dollars (“USD”), and payment shall be made in USD.
4.4 Taxes: Unless otherwise stated, Company fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The customer is responsible for paying all Taxes associated with purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.4, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against the Company based on Company’s income, property, and employees.
4.5 Annual Fee Increase: Fees are subject to annual increases, which will be effective beginning upon each anniversary of the Effective Date. The company will notify the Customer of any increase before it becomes effective and such notice may be in the form of an invoice. Customer acknowledges that expiration of any discount or incentive programs to with Customer was previously entitled does not constitute fee increases.
4.6 Subscription Services: Customer may not reduce its commitment specified in this Agreement during the Initial SOW Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume (as defined by the applicable SOW) of Usage fees that Customer uses is less than the volume Customer has subscribed for, and Customer may not carry over any of the unused volumes to Customer’s Renewal SOW Term. If Customer wishes to reduce the volume of a Subscription Services plan for a Renewal SOW Term, then (i) Customer must notify Company at least thirty (30) days before the start of the Renewal SOW Term for the applicable Subscription Services, and (ii) the Parties will negotiate a reduction in Fees in good faith and any agreed-upon reduction will be effective at the start of the Renewal SOW Term.
5.1 Company Warranties: Company warrants that:
5.1.1 Company will exercise reasonable skill and due care in the performance of the Subscription Services, and will perform the Subscription Services in a professional and workmanlike manner, consistent with the applicable industry standard;
5.1.2 Company will, during the Subscription Term, ensure that the Software, in the form provided by Company, conform in all material respects to its applicable technical and functional specifications set out in the Documentation; and
5.1.3 Company shall undertake its performance obligations under this Agreement and any applicable SOW by this Agreement and applicable to the provisions of the Subscription Services.
5.1.4 Customer shall notify Company in writing of any breach of the warranty set out in Section 5.1 promptly and in any event within thirty (30) days of the provision of the Services in issue. Customer shall provide all information as may be deemed necessary by Company to assist Company in resolving any such breach.
5.1.5 Customer’s sole remedy of the warranty set out in Section 5.1 shall be that Company shall use reasonable commercial endeavours to cure the breach without charge to the Customer and if, in Company’s reasonable opinion, Company is unable to do so, then Company shall refund that portion of the Services Fee that directly corresponds to the breach.
5.2 Customer Warranties: Customer warrants that:
5.2.1 Customer has the right to use the Subscription Services and shall maintain all requirements for the use and receipt of the Subscription Services;
5.2.2 Customer will use, whether directly or indirectly, the Subscription Services only by the terms of this Agreement and laws applicable to the Subscription Services;
5.2.3 Customer will contractually ensure that its personnel, customers, and any third parties that, directly or indirectly, use the Subscription Services will do so by this Agreement and laws applicable to the use of Subscription Services;
5.2.4 All information and data provided by Customer to Company under this Agreement is accurate and complete; and
5.2.5 Customer’s use of the Subscription Services or provision of any information or data to Company or the CogniSure AI Platform does not violate any third-party agreement (including, without limitation, any agreements with Customer’s customers or vendors).
5.2.6 Customer agrees to indemnify, defend, and hold Company harmless against any third-party claims, damages, or expenses incurred by Company due to a breach of any Customer warranty set out in Section 5.2 or Section 5.3.
5.3 Company and Customer Warranties: Company and Customer each warrants that:
5.3.1 this Agreement is executed by the duly authorized representatives of Company and Customer;
5.3.2 no contractual obligations exist that would prevent either Company or Customer from entering into this Agreement; and
5.3.3 the Party has the requisite corporate authority to execute, deliver, and perform its obligations under this Agreement.
5.4 Bugs and Abatement: Without limiting the foregoing, Company does not warrant that CogniSure AI Platform, Deliverables or Subscription Services are completely free from all bugs, defects, errors, or omissions. The warranty under this Section 5 will automatically abate to the extent that the Software or Deliverables have been modified by persons other than Company’s authorized employees or representatives, or other than at Company’s express direction. The warranties in this Agreement are for the sole benefit of Customer, and may not be extended to any other person or entity.
5.5 Disclaimer of Implied Warranties: The company makes no representation or warranty in connection with the CogniSure AI Platform, Deliverables or Services, except as expressly set out in this Section 5. To the maximum extent permitted by applicable law, except as specifically warranted in this Section 5, the CogniSure AI Platform is provided “as is” and the Company disclaims all implied warranties, including any implied warranties of satisfactory quality or fitness for the particular purpose, any implied warranty of non-infringement as an implied obligation to indemnify for infringement, any implied warranty arising from a course of performance, course of dealing, or using the age of trade, and any statutory remedy.
6.1 Company’s Infringement Indemnity
6.1.1 Defense and Indemnity: To the extent that any third party makes any claim against Customer which is that the Subscription Services, CogniSure AI Platform, or Deliverables infringe any patent or trademark existing under the law, copyright, or results from misappropriation by Company of any third party’s trade secret, that, if true, would constitute an infringement by Company, then upon notification of such claim, Company will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer. Upon the occurrence of “Determination Against Company” (defined below), the Company will indemnify the Customer from and against all damages finally awarded against the Customer or agreed to be paid by the Customer in a written statement approved in writing by the Company, resulting from the Company’s infringement. The company’s obligations under this Section 6.1.1 are subject to Customer’s compliance with the “Indemnification Conditions” (defined in Schedule 1).
6.1.2 Customer’s Mitigation Rights: If any Subscription Services, CogniSure AI Platform, or Deliverables supplied by the Company becomes (or in the Company’s opinion are likely to become) the subject of any infringement or misappropriation claim, the Company may, at its sole option and expense either:
(i) procure for Customer the right to continue using the relevant Subscription Services, CogniSure AI Platform, or Deliverables;
(ii) replace or modify the relevant Subscription Services, CogniSure AI Platform, or Deliverables in a functionally equivalent manner so that they no longer infringe; or
(iii) terminate (to the extent applicable) the Agreement, Statement of Work, or Customer’s rights to use affected Deliverables, and refund the Customer:
a. if Subscription Services are terminated, a pro-rata amount of any prepaid Subscription Services Fees applicable to the unutilised portion of the Subscription Term for the terminated Subscription Services; or
b. if the right to use Deliverables is terminated, an amount equal to the fees paid by Customer to Company for such Deliverables, depreciated on a straight-line basis over a 3-year life.
6.1.3 Exclusions: Notwithstanding the foregoing, Company will have no obligation under this Section 6.1 or otherwise concerning any infringement or misappropriation claim to the extent based upon:
(i) Any use of the CogniSure AI Platform, Deliverables, or Subscription Services not by their applicable license rights;
(ii) the combination of the CogniSure AI Platform, Deliverables, or Subscription Services with other products, equipment, software, services or data not supplied by the Company where the infringement would not have occurred but for such combination;
(iii) Company’s compliance with Customer’s specifications, configurations requirements, or other instructions;
(iv) any use of any version of any Software or Deliverables other than the most recent version made available to Customer after notice from Company that Customer must upgrade to such release to avoid an infringement or misappropriation claim;
(v) any modification of Deliverables or Subscription Services not made by Company or its express direction; or
(vi) any Customer Materials.
6.2 Customer’s Infringement Indemnity
6.2.1 Defense and Indemnity: If any third party makes any claim against Company that Company’s use of any Customer Materials by this Agreement infringes any patent or trade mark or infringes or violates any copyright, privacy right or data protection right, or results from any misappropriation by Customer of such third party’s trade secret or privacy rights then, upon notification of such claim, Customer will, at its sole cost and expense, defend Company against such claim and any related proceeding brought by such third party against Customer. Upon the occurrence of a “Determination Against Customer” (defined in Schedule 1), Customer will indemnify Company from and against all damages finally awarded against Company or agreed to be paid by Company in a written statement approved in writing by Customer, resulting from Customer’s infringement. The customer’s obligations under this Section 6.2.1 are conditioned upon Company’s compliance with the “Indemnification Conditions”.
6.2.2 Company’s Mitigation Rights: If the provision of Customer Materials in Customer’s reasonable opinion is likely to become the subject of a claim of infringement or misappropriation of any intellectual property right of any third party, then Customer will have the right to:
(i) procure the rights necessary for Customer to continue to provide Customer’s Materials to Company;
(ii) replace or modify the Customer Materials in a functionally equivalent manner so that they no longer infringe; or
(iii) if the options described in (i) and (ii) above are not available to Customer on commercially reasonable terms, terminate Company’s right to use Customer Material (in which case Company’s obligations to perform the Services will be reduced to the extent that Company require the Customer Materials to perform, and any such termination may, at Company’s sole discretion, be treated as a termination for convenience by Customer and subject to the terms of Section 8.7.
6.2.3 Exclusions: Notwithstanding the foregoing, Customer will have no obligation under this Section 6.2 or otherwise concerning any infringement or misappropriation claim to the extent based upon:
(i) any use of Customer Materials not by their applicable license rights notified by Customer to Company;
(ii) the combination of Customer Material with other products, equipment, software, services, or data not supplied by Customer where the infringement would not have occurred but for such combination, but excluding combination with any CogniSure AI Platform;
(iii) Customer’s compliance with Company’s specifications or instructions;
(iv) any use of any version of any Customer Material other than the most recent version made available from Customer that Company must upgrade to such release to avoid an infringement or misappropriation claim and Company has had a reasonable time in which to implement such upgrades;
(v) any modification of Customer Materials not made by Customer or at its express direction; or
(vi) any data processed by the Customer Materials that Customer has not provided, made available, or required Company to use or access.
6.2.4 Improper Use of CogniSure AI Platform: Customer will defend and indemnify Company from and against any claims, damages, losses, judgements, fines, penalties, liabilities, costs, and expenses (including reasonable legal fees) arising out of or in connection with any non-compliance with the applicable laws for which Customer, Customer’s users or Customer’s affiliates are responsible at least in part. The company will comply with the Indemnification Conditions.
7.1 Restrictions on Use and Disclosure: Neither Company nor Customer will disclose to any third party any information provided by the other Party under or in connection with this Agreement that the disclosing Party identifies as being propriety or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as propriety or confidential (“Confidential Information”), and will make no such Confidential Information except under and by this Agreement. Confidential Information includes information concerning inventions, concepts, ideas, techniques, specifications, drawings, diagrams, models, samples, flowcharts, computer programs and code and their associated documentation and programmer’s notes, network topography and network configuration and access information, security policies and processes, data, finances and plans, business plans, contracts, marketing plans, system implementation plans, business concepts, business procedures and business operations, pricing, market analysis, research, strategies, projections, forecast, and financial information and all the material related thereto; and Personal Information as defined in Schedule 1. Confidential Information also includes information disclosed by the disclosing Party with permission from a third party and combinations of or with publicly known information where the nature of the combination is not publicly known. Customer’s Confidential Information includes Customer Data. The company’s Confidential Information includes any information regarding the CogniSure AI Platform, Company service offering, and Documentation.
7.2 Exclusions: Confidential Information does not include information that the receiving Party can establish: (i) entered the public domain without the receiving Party’s breach of any obligation owed to the disclosing Party, excluding Personal Information; (ii) has been rightfully received by the receiving Party from a third party without confidentiality restrictions; (iii) was known to the receiving Party without any restriction as to use; or (iv) has been independently developed by the receiving Party without the use of or reference to the disclosing Party’s Confidential Information.
7.3 Disclosure Required by Law: To the extent permitted by applicable law, if any applicable law, regulation, or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party’s Confidential Information then unless otherwise required by such order, the receiving Party will promptly notify the disclosing Party in writing before making such disclosure, such that the disclosing Party has the opportunity to seek and obtain a protective order or other remedies concerning its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party’s sole reasonable expense, in seeking and obtaining protection for the disclosing Party’s Confidential Information.
7.4 Independent Development: The terms of confidentiality under this Agreement will not limit either Party’s right to independently develop required products, software, or services without the use of or reference to the other Party’s Confidential Information.
7.5 Protection of Customer Data:
7.5.1 Data Processing Approvals: Except to the extent otherwise specified under this Agreement or in applicable SOW, Customer represents and warrants that it has obtained and will obtain all necessary consents, licenses, and approvals for the processing of any Customer Data as part of the Services. The customer agrees to indemnify the Company from and against all claims, liabilities, and damages resulting from a breach of this Section 7.5.1.
7.5.2 Regulatory Requirements: To the extent applicable to the Subscription Services provided by Company to Customer under this Agreement, Company will comply, and will ensure that its employees and sub-contractor comply (to the extent such subcontractors have access to Personal Information), with the requirements of the applicable law and regulations governing Personal Information in the Company’s position or under its control. Customer shall provide Company with such information as Company reasonably requires to understand and confirm its compliance obligation.
7.5.3 Security Program: To the extent applicable to the Subscription Services provided by Company to the Customer under this Agreement, the Company will implement and maintain commercially reasonable security measures designed to meet the following objectives (collectively, the “Company Security Program”):
(i) ensure the security and confidentiality of Customer Data in the custody and under the control of the Company;
(ii) protect against any anticipated threats or hazards to the security or integrity of such Customer Data;
(iii) protect against unauthorized access to or use of such Customer Data; and
(iv) ensure that the Company’s return or disposal of such Customer Data is performed in a manner consistent with Company’s obligation under items (i) – (iii) above.
7.5.4 Breach Notification: The company will notify the Customer of any unauthorized access to, use of or disclosure of Customer Data within the Company’s custody and control within two (2) business days of the Company’s confirmation of the same. Each Party will reasonably cooperate with the other concerning the investigation and resolution of such unauthorized access, use or disclosure. Upon confirmation of any vulnerability or breach of the Company’s security affecting Customer Data in the Company’s custody and control, the Company will modify its processes and security program as necessary to mitigate the effect of the vulnerability or breach upon such Customer Data. Customer will notify Company of any security compromises affecting its User’s authentication credentials used to access the CogniSure AI Platform and any Customer systems or networks that interoperate with or transmit data to the CogniSure AI Platform, within two (2) business days of confirmation of the same.
7.5.5 Company’s Processing of Customer Data: The company will be liable for any unauthorized access to the Customer Data by third parties only to the extent resulting from Company’s failure to adhere to the Company Security Program, or for Company’s negligence or fraudulent misconduct. The provisions of this Section 7.5.5 apply notwithstanding any provision of this Agreement or any other agreement between Company and Customer (or any affiliate of Customer) to the contrary.
7.5.6 Company’s Processing of Personal Information: Both Company and Customer shall perform their obligations under this Agreement by all applicable laws, enactments, regulations, orders, standards, and other similar instruments about the processing of Personal Information.
7.5.7 Company’s Global Development Centers: Customer acknowledges that Company has engineering and development centres worldwide, which Company may use to provide Services to Customer. All Company engineering and development centres, whether located in the U.S. or at an offshore location, follow strict data security requirements by applicable laws and regulations.
7.6 Company shall process the Personal Information by Customer’s instructions from time to time and shall not process the Personal Information for any purposes than as set out in this Agreement and the provision of the Services.
7.7 Company warrants that having regard to the state of technological development and the cost of implementing any measures, it will:
7.7.1 take appropriate technical and organizational measures against the unauthorized or unlawful processing of Personal Information and against the accidental loss or destruction of, or damage to, Personal Information to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected; and
(iii) take reasonable steps to ensure compliance with the dose measures.
7.8 Each Party agrees to indemnify, defend, and hold the other Party harmless against all third party claims, damages, or expenses incurred by the other Party or for which the other Party may become liable due to any failure of the first Party or its employees or agents to comply with any of its obligation under this Section 7.
7.9 Customer acknowledges that Company is reliant on the Customer for direction as to the extent to which the Company is entitled to use and process the Personal Data. Consequently, the Company will not be liable for any claim brought by a third party arising from any action or omission by Company, to the extent that such action or omission resulted directly from the Customer’s instructions or the Customer failing to comply with its obligation under this Section 7.
7.10 Company may authorize a third party to process the Personal Information provided that the sub-contractor contract is on terms which are substantially the same as those set out in this Section 7.
8. Term and Termination
8.1 Termination for Insolvency: Either Company or the Customer may terminate this Agreement immediately by notice in writing if:
8.1.1 any procedure is commenced with a view to the winding-up or re-organisation of the other, (in each case, other than for a solvent amalgamation or reconstruction);
8.1.2 any procedure is commenced with a view to the appointment of an administrator, receiver, administrative receiver, or trustee in bankruptcy about the other or all or substantially all the assets of the other;
8.1.3 an administrator, liquidator, receiver, administrative receiver, or trustee in bankruptcy is appointed about the other or all or substantially all of the assets of the other;
8.1.4 all or substantially all of the assets of the other, are subject to attachment, sequestration, execution or any similar process;
8.1.5 the other is insolvent as defined in insolvency legislation or enters into a composition or arrangement with its creditors generally or any class of them;
8.1.6 if the other Party suspends, ceases, or threatens in writing to suspend or cease, to carry on all or a substantial part of its business.
8.2 Termination for Cause: In the event of a material breach of the Agreement by either Party, the non-breaching Party may terminate the Agreement or any SOW directly affected by the breach by giving the breaching Party written notice of the breach and non-breaching Parties intention to terminate (“Termination Notice”). If the breach has not been cured within thirty (30) days after such notice, this Agreement or any such SOW will terminate within the period specified in the Termination Notice. Notwithstanding the foregoing, Customer’s failure to pay any fees and expenses within fifteen (15) days of Company notifying Customer of the overdue payment, which notice may include informing Customer’s representative of the overdue payment in writing (including by email), will constitute a material breach of this Agreement. If the Customer has not cured a material breach within the applicable cure period, then Company may, at its sole discretion and without prejudice to its other rights following a material breach and failure to cure, until such breach has been cured in full, suspend performance of some or all of Company’s obligation to provide the Services under this Agreement.
8.3 Term: The Subscription Services shall commence on the Effective Date. Thereafter, the Subscription Services shall automatically continue for a minimum initial term as set out in SOW # 1 (“Initial SOW Term”). The Initial SOW Term will automatically renew for an additional one (1) year term (each, a “Renewal SOW Term”) unless either Party provides ninety (90) days’ prior written notice to the other Party of its intent to not renew. The Initial SOW Term and each Renewal SOW Term are collectively referred to in these terms as the “SOW Term.”
8.4 Subscription to Upgrade or Additional Services: If Customer upgrades its Subscription Services during a Subscription Term, then the upgraded Subscription Services shall continue for the remainder of the then-current Subscription Term and Company will invoice Customer an amount equal to the difference between the original Subscription Services fee and the upgraded Subscription Services fee.
8.5 Termination for Convenience: Either Party may terminate the Subscription Services effective upon the expiration of the then-current Initial SOW Term or Renewal SOW Term (as applicable) by providing the other Party written notice of termination ninety (90) days before the end of the term.
8.6 Compensation for Early Termination: If (i) Customer terminates the Subscription Term before the expiry of the Initial SOW Term or the Renewal SOW Term (as applicable) or (ii) Company terminates the Subscription Term by Section 8.2 as a result of Customer’s non-payment of Subscription Services Fees within fifteen (15) days, then Customer will pay Company, as liquidated damages, the balance of any contractual minimum amounts that would have applied during the remainder of the Subscription Term, except if Company breaches and Customer terminates this Agreement for cause by Section 8.2. Customer and Company each acknowledge that such liquidated damages are reasonable forecasts of just compensation for the harm caused by the Customer’s premature termination.
8.7 Fulfilment of Obligations on Termination: Notwithstanding anything to the contrary, termination of this Agreement or any Services will not relieve Customer from any obligation to pay fees or reimburse expenses for Services performed before the termination.
8.8 Refund of Prepaid Subscription Services Fees if Customer Terminates for Breach: If Customer terminates this Agreement by Section 8.1 or 8.2 above, then Company will refund to Customer a pro-rata amount of any prepaid Subscription Services Fees applicable to the unutilised portion of the Subscription Term. Notwithstanding anything to the contrary, Customer is not entitled to any refund or relief from the payment of any Subscription Services Fees paid under this Agreement if Customer terminates this Agreement for convenience.
8.9 Post Termination Obligations: Following any termination of the Agreement or any SOW, each Party will, within thirty (30) days of such termination: (i) immediately cease to use the Confidential Information of the other Party that has been communicated for this Agreement or any SOW (as applicable); and (ii) upon customer request, return or destroy (certified destruction) all copies of any Confidential Information of the other Party disclosed under this Agreement or an SOW within thirty (30) days of such termination.
8.10 Access to and Destruction of Customer Data: Company will provide Customer with an export file of, or access to export purpose to, Customer Data stored on CogniSure AI Platform if, within thirty (30) days of any termination, Customer notifies Company of Customer’s request for export rights. Company will destroy or overwrite Customer Data within a reasonable period of the time following termination of the Agreement, subject to conformance with Company’s backup and data retention policies.
8.11 Survival: The provisions of Sections 1, 3, 4.3, 4.4, 6, 7, 8.7, 8.9, 8.10, 8.11, 9, 10, and 11, and any other Sections that by its terms are required to survive shall survive the termination or expiration of this Agreement.
9.1 At all times when Company will be performing Services under this Agreement and any applicable SOWs, the Company will procure and maintain insurance coverages by industry standards.
9.2 Company will provide Customers with proof of such insurance upon reasonable request by the Customer. The company will not materially alter its insurance coverage described above without providing Customers with at least thirty (30) days’ prior written notice.
10. Limitation and Exclusion of Liability
10.1 To the extent permitted by applicable law, except for fraud, gross negligence, willful misconduct, death, personal injury, or a Party’s indemnification or confidential obligations hereunder, under no circumstances will either Party be liable to the other Party under this Agreement for (a) any indirect, consequential, special, exemplary, incidental, or punitive damages of any kind, including, but not limited to, lost profits, lost data, business interruption, loss of business reputation or goodwill, loss of direct or indirect profits or investments, or the cost of procurement of substitute goods or services, or (b) an amount for all claims arising out of or related to this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or under any other theory of liability, that exceed the amount paid by Customer under the relevant Statement of Work in the twelve (12) months immediately preceding the events giving rise to the liability even if such Party has been advised of the possibility of such damages, arising out of (i) the performance or non-performance of this Agreement or Services provided hereunder, or (ii) any claim, cause of action, breach of contract, or any express or implied warranty, under this Agreement or otherwise, misrepresentation, negligence, strict liability, or other tort (including breach of statutory duty). Any amounts payable to a third party under a judgment or agreed to in a settlement approved in writing by an indemnifying Party in connection with an indemnification obligation under this Agreement shall be deemed to be direct damages for this Section 10.
10.2 Notwithstanding anything to the contrary, the foregoing limit shall not apply to Customer’s payment obligations under the “Fees” section above in Section 4.
10.3 Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer or fail in their essential purpose and that without these limitations the Fees would be significantly higher.
10.4 No action, regardless of form, arising out of transactions occurring under, or contemplated by this Agreement may be brought by either Party more than one (1) year after the cause of action has occurred.
11. Dispute Resolution and Arbitration
11.1 Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) in which either Party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, both Parties agree (a) to waive their respective rights to have any Disputes arising from or related to this Agreement, including the use of the Services and CogniSure AI Platform, resolved in a court, and (b) to waive their respective rights to have the Dispute decided by a jury or by court judge.
11.2 The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by mandatory and binding arbitration administered by the American Arbitration Association by its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12. Miscellaneous Provisions
12.1 Governing Law and Jurisdiction: This Agreement and disputes or claims arising from or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be interpreted, construed and enforced in all respects by the State of Delaware. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal course in the State of Delaware in connection with any action arising out of or in connection with this Agreement.
12.2 Publicity: Provided that the Company complies with any trade mark usage requirements notified to it by Customer, Company may refer to the Customer as one of the Company’s customers and use Customer’s logo as part of such reference. Upon execution of this Agreement, Company may either (i) issue a press release announcing the relationship between Company and Customer; or (ii) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed. Customer agrees to be a reference account for Company, provided, however, that Company will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.
12.3 Non-Solicitation of Personnel: During the term of this Agreement, and for six (6) months thereafter, neither Party will, without the prior written consent of the other, directly or indirectly solicit, hire or employ any employee or individual independent contractor of the other Party who has been involved in the provision of Services during the preceding year to become an employee or individual independent contractor of the other. Nothing in this Section 12.2 will make a Party liable for general solicitation in the media or on the Internet.
12.4 Equitable Relief: Customer and Company acknowledges that damages will be inadequate if the other violates the terms of this Agreement regarding the protection of a Party’s Intellectual Property Rights, Confidential Information, or Personal Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary, and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
12.5 Force Majeure: Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, regional or global pandemic, fire, flood, pestilence, earthquake, acts of civil or military authorities, riots or civil disobedience, wars, strikes, or labor disputes (other than those limited to the affected Party) (each a “Force Majeure Event”), such affected Party’s performance will be excused and the time for performance will be extended accordingly provided that the Party affected immediately notifies the other Party and immediately takes all reasonably necessary steps to resume full performance, provided that the affected Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the affected Party through the use of alternate sources, workaround plans, or other means. If the Force Majeure Event lasts for more than fifteen(15) days, then the affected Party may terminate this Agreement.
12.6 Headings: The headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
12.7 Severability/ Invalidity: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, then the provisions shall apply with whatever modification is necessary to give effect to the commercial intentions of the Parties.
12.8 Waiver: No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any right or remedy.
12.9 Assignment: Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, conditioned or delayed, however, the Company may assign or delegate some or all its rights and obligations under this Agreement to an entity to which it has merged, or that acquires all its assets. Subject to the foregoing restriction on assignment by Customer, this Agreement will be binding upon, and only for the benefit of and enforceable by the Parties and their respective successors and assigns.
12.10 Notices: Any notice or other communication under this Agreement given by either Party to the other Party will be deemed to be properly given if given in writing and delivered by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set out on the relevant SOW and with the appropriate postage affixed; furthermore, to the extent permissible under applicable law, each Party may communicate with the other by electronic means and such communication is acceptable as a signed writing. Either Party may change its address for receipt of notice by notice to the other Party by this Section 12.11. Notices are deemed given three (3) Business Days following the date of mailing or one (1) Business Day delivery by a courier.
12.11 Entire Agreement: This Agreement constitutes and embodies the entire Agreement and understanding between the Parties concerning the subject matter and supersedes all prior or written, electronic or oral communications, representations, agreements or understandings between the Parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both Parties. In the event of any conflict or inconsistency between the provisions of this Agreement and the terms of any form of purchase order or invoice, the provisions of this Agreement will prevail. The customer’s standard terms of purchase, if any, are inapplicable. In the event of any conflict between SOW # 1, the Agreement (including its Schedules), and any future SOW, the following order of precedence will apply, except to the extent expressly specified otherwise in the applicable SOW: (i) the most recently executed SOW (if one or more SOWs are executed after SOW # 1); (ii) SOW # 1; and then (iii) the Agreement (including its Schedules).
12.12 Counterparts: This Agreement and any amendments hereto may be executed in one or more counterparts, which taken together will constitute a single agreement between the Parties.
Schedule 1: Definitions
For this Agreement, the definitions of capitalized terms have the following meanings:
“Affiliates” means an entity that directly or indirectly controls, or is under common control with, or is controlled by, Company or Customer. As used in this definition, “control” (including, with its correlative meanings, “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
“Business Day” means a day other than a Saturday, Sunday or U.S. federal holiday.
“Confidential Information” has the meaning set out in Section 7.1.
“Configuration” means the functions and features specified and implemented in the Software and/or Services by or for the Customer.
“Customer Data” means any data or other information owned or controlled by Customer which is used to use the Services.
“Customer Materials” means any software, documentation, Customer Data, hardware, tools, or any other materials, information or intellectual property owned, leased or licensed by Customer, and that Customer delivers to Company or to which Customer provides Company with access, for use by Company in its performance of the Services.
“CogniSure AI Platforms” means the Software and Documentation together with other computer software programs, networks and equipment that Company uses to make the Services available to its customers.
“Deliverables” means any software code, reports or documentation (as applicable) required to be delivered by the Company to the Customer as part of the Subscription Services or Professional Services as specified in the applicable Statement of Work.
“Determination Against Company” means a final determination by the court or tribunal conducting the proceedings that the Company has infringed by the third party’s right or the conclusion of a settlement between the Company and the third party in which the Company agrees to pay compensation for such infringement of the third party’s rights.
“Determination Against Customer” means a final determination by the court or tribunal conducting the proceedings that Customer has infringed by the third party’s right, or the conclusion of a settlement between Customer and the third party in which Customer agrees to pay compensation for such infringement of the third party’s rights.
“Documentation” means the documentation and manuals provided to Customer by the Company regarding the use of the Software, including additional, updated or revised documentation, if any.
“Effective Date” means the date set out in the applicable SOW.
“Fees” means the fee due under this Agreement as set out in SOW # 1 or any subsequent SOWs.
“Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to defense or indemnification under the Agreement by the other party; (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject to indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided that no failure to so notify an indemnifying party will relieve that indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement; (iv) the indemnified party provides such assistance in defense of the proceedings as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expenses; (v) the indemnifies party complies with any court order or reasonable settlement made in connection with the proceeding; and (vi) the indemnified party uses all commercially reasonable endeavours to mitigate its losses.
“Infrastructure Provider” means the service provider that provides data centre or private cloud services to the Company as part of the Services.
“Initial SOW Term” has the meaning as described to it in Section 7.3 and as set out in the applicable SOW.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Invention” means any invention, work of authorship, know-how, device, design, algorithm, method, process, improvement, expression, or discovery, whether or not copyrightable or patentable and whether or not reduced to practice.
“Personal Information” means personal data or personal information as described by the State of Delaware and relates only to personal data, or any part of such personal data, which is provided by Customer and about the Company’s provision of Services under this Agreement
“Professional Services” means the professional services to be performed by the Company that is specified in the SOW # 1 or subsequent applicable Statement(s) of Work. Such professional services may or may not be directly related to CogniSure Software Services.
“Services” means the Service provided by Company under this Agreement and any SOW including the Subscription Services and the Professional Services.
“Software” means the computer software set out in Schedule 2 or as otherwise outlined in an applicable SOW, including Third Party Software, provided by the Company as part of Services.
“SOW Term” means an Initial SOW Term and any Renewal SOW Terms, as more fully described in Section 8.3.
“Statement of Work (SOW)” means any mutually agreed, written services description, executed on behalf of Company and Customer, describing the Subscription and/or Professional Services to be provided by Company to Customer, as well as any related obligations of Customer, that are made part of this Agreement, as described in Section 2.1.
“Subscription Services” means CogniSure AI Platform software and service offering to which the Customer subscribes, as specified in the applicable SOW.
“Third Party Software” means the computer software specified in Schedule 2, owned or operated by third parties and sub-licensed or distributed by Company to Customer.
“User” means any individual who is an employee or an independent contractor of Customer or, to the extent providing services to Customer, is an employee of such service provider, and who is authorized by Customer to use CogniSure AI Platform under this Agreement.
Schedule 2: Third-Party Software
The following Third Party Software is licensed under this Agreement:
Microsoft Azure: https://azure.microsoft.com/en-us/support/legal/subscription-agreement/
Amazon Web Services (AWS): https://aw.amazon.com/agreement/
QlikTeck International AB (Qlik): https://www.qlik.com/us/legal/legal-policies
Any other services, Open source Software that CogniSure determines will enhance Services provided under this agreement.