PREDICTIVE SAFETY SOFTWARE LICENSE AGREEMENT
1. Purpose. PS has developed a proprietary software and Subscriber desires to use the System. This Agreement sets forth the terms and conditions pursuant to which PS agrees to provide Subscriber with Access to the System and related Services.
2. Definitions. In this Agreement, the following capitalized terms have the meanings indicated:
2.1 “Access Period” means the duration of time that Subscriber is granted Access to the System under this Agreement, commencing on the Service Start Date and continuing for the Term set forth in an attached Service Order, unless terminated earlier in accordance with the terms of this Agreement.
2.2 “Additional Services” means consulting, reporting, software development, or other services in addition to those specified in this Agreement that are agreed to by the parties in a mutually executed Service Order.
2.3 “Administration Tools” means the user interface in the System that allows End Users with applicable rights to administer the System, End Users, and other features of the System.
2.4 “Contact Person” means a person designated by Subscriber to interface with PS for the purpose of obtaining support.
2.5 “Documentation” means the online help text and manuals provided with System, if any.
2.6 "End User(s)" means the individual employees, contractors, or agents of Subscriber authorized by Subscriber to use the System in connection with their relationship with Subscriber.
2.7 “Enhancement” refers to any Update or Upgrade of the System.
2.8 "Error" means a material failure of the System to function in accordance with its Documentation.
2.9 “Hosted Services” means the standard web-based services provided via the PS Website to support use of the System.
2.10 "Intellectual Property Rights" or "IP" means unpatented inventions, ideas, methods, processes, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how, trade secret rights, and all other forms of protection of a similar nature anywhere in the world.
2.11 “Report” is defined as any spreadsheet, document, print-out or other embodiment of information, whether in tangible or electronic form, that is generated by the System.
2.12 “Services” means Hosted Services, Support Services and Additional Services (if any) PS may provide to Subscriber.
2.13 “Service Content” means the audio and visual information, Documentation, software, products and services contained or made available to Subscriber and its End Users by PS in the course of providing the Hosted Services.
2.14 “Service Level Agreement (SLA)” means the level of Service commitments made by PS and is included as Exhibit A to this Agreement. PS maintains the right to update its SLA from time-to-time with reasonable notice to Subscriber.
2.15 "Service Order" means a document signed by both parties that is appended to, and identifies itself as a part of, this Agreement.
2.16 “Service Start Date” means the date on which System is made available to Subscriber as described below in Section 3 (Delivery).
2.17 “Subscriber Data” means any data or information that is provided by and input into the System by the Subscriber and its End Users, and the contents of any Report generated therefrom, and is subject to the Administration Tools function.
2.18 “Subscriber Location(s)” means any location of Subscriber that has Access to the System, as provided in an attached Service Order or any subsequent Service Order agreed to by the parties.
2.19 “Support Services” means any System maintenance, support and training services provided to Subscriber by PS, as provided in Section 7 (Support Services).
2.20 "System" means the PS software and any associated Subscriber Data or other data or information identified in any attached Service Order.
2.21 “Website” or “PS Website” means the Internet website located at a link to be determined at which Subscriber can access and use the System.
2.22 “Update” means a bug fix, patch, improved feature or functionality, or other revision to or modification of the System that PS provides to Subscriber, including those it makes generally available to Subscribers that subscribe to its maintenance services. Updates do not include Upgrades.
2.23 “Upgrade” means a new module or add on component, as determined by PS in its sole discretion. Upgrades may be subject to additional fees and are not covered under this Agreement unless they are subject to a separate Service Order agreed upon by the parties.
3. Delivery. PS will deliver to Subscriber by email an active link, access codes and/or credentials required to access the System via the PS Website.
4.1 By PS. The System is made available to Subscriber via the PS Website and not sold. Subscriber acknowledges that the System, Service Content, PS Website and all Intellectual Property Rights embodied in the System and Service Content, including without limitation any improvements, enhancements, changes, alterations, modifications or derivative works thereto, which are developed, created or generated in connection with this Agreement, are and will remain the property of PS and its licensors. Subscriber will have no right, title or interest in or to the System or Service Content, except those rights expressly granted to Subscriber by PS pursuant to this Agreement. To the extent Subscriber acquires any rights in or to the System
or Service Content by operation of law or otherwise, Subscriber hereby assigns all right, title and interest therein to PS without further consideration. Upon PS’s request, Subscriber shall execute from time to time, during or after the termination of this Agreement, such further instruments as may be deemed reasonably necessary by PS to effectuate the provisions of this Section 4 (Ownership). There shall be no licenses or rights implied under this Agreement, based on any course of conduct, or other construction or interpretation thereof. All rights and licenses not expressly granted are reserved by PS.
4.2 By Subscriber. Subject to Section 5.4 (PS Analytics), Subscriber owns all right, title and interest in and to the Subscriber Data and any Subscriber-specific Report generated therefrom, including any derivative works of such Subscriber Data or Reports.
4.3 Works Created by PS. Subscriber agrees and acknowledges that unless specifically agreed to in writing by PS, all works created by PS, including, but not limited to, modules and additional features, even if created for Subscriber and/or paid to be created by Subscriber will be owned in full by PS and that such works may be incorporated into the standard commercially available System sold publicly.
5. Access Rights and Restrictions.
5.1 Access Rights. Subject to the terms and conditions of this Agreement and during the Access Period, PS grants to Subscriber a non-exclusive, non-sublicensable and non-transferable right limited to the number of licensed End User and to the licensed Subscriber Locations, under PS's Intellectual Property Rights, to access, execute, display, perform, and otherwise use the System via app.alertmeter.com and/or fatigue.predictivesafety.com or via an on-premise installation of the System, for all purposes permitted in the Documentation. Subscriber's End Users shall be entitled to access and use the System solely in connection with their relationship with Subscriber and only to the extent necessary in the performance of their role within the Subscriber organization. Specifically, only those Subscriber End Users with administrative-level access, as determined by Subscriber in its reasonable discretion, shall have access to the Administration Tools in order to populate the System with Subscriber Data. Subscriber acknowledges and agrees that it shall be
responsible for all such End Users’ use of the System. Subscriber shall be entitled to generate Reports based upon the Subscriber Data and may disclose, disseminate, distribute, copy, modify, change, alter and create derivative works of the Reports.
5.2 Access Restrictions. Subscriber will not, nor will it permit others to: (i) modify, disable, circumvent, deactivate or otherwise interfere with features of the System; (ii) decompile, disassemble, reverse-engineer or otherwise attempt to derive the source code of the System, except to the limited extent, if any, these activities may be permitted by law despite this restriction; (iii) copy, modify or create derivative works of any aspect of the System; (iv) use the System for a purpose or in a manner not permitted by the Documentation, as it may be amended from time to time; or (v) sell, rent, lease, sublicense, redistribute or otherwise permit access to the System, System access link or other credentials or Hosted Services. Subscriber will preserve any Intellectual Property Rights notices (including copyright notices) associated with the System and will not modify or remove such notices in any manner.
5.3 Feedback and Requests. If Subscriber or Subscriber's End Users provide comments, suggestions, ideas, feedback, recommendations or other information relating to the System (“Feedback”), PS shall be free to employ and use such Feedback in its business for all purposes without obligation to Subscriber (or, where applicable, to an End User), including without payment obligation.
5.4 PS Analytics. Subscriber acknowledges and agrees that PS is entitled to collect, compile, analyze and otherwise use and exploit the Subscriber Data and statistical data related to the Subscriber Data for PS’s business purposes, including but not limited to improving its products and services (“PS Analytics”). PS shall be entitled to retain a copy of the Subscriber Data for purposes of PS Analytics following expiration or termination of this Agreement. To the extent that PS chooses to sell, publish or otherwise share the PS Analytics, PS will use reasonable efforts to de-identify the Subscriber and its End Users (unless the Subscriber or applicable End User has otherwise provided consent to being identified). No compensation will be paid by PS with respect to its use of the PS Analytics.
6. Unauthorized Use. Subscriber will use all commercially reasonable efforts to prevent unauthorized use of the System and Hosted Services and act promptly to terminate any unauthorized use. Subscriber will promptly notify PS of any unauthorized use of, or access to, the System and Hosted Services of which it becomes aware. Subscriber will promptly disable the credentials of any End User that is terminated from employment with Subscriber. If Subscriber is unable to disable such credentials for any reason, Subscriber will notify PS within one business day. Subscriber agrees and acknowledges that any End User accounts, whether active or disabled will be treated as licensed End Users. Subscriber agrees and acknowledges that
Subscriber may also delete any End User but that by deleting the End User all data associated with that End User account will be deleted.
7. Support Services. In further consideration for payment of the Subscription Fees and provided that Subscriber is current in its payment of such Fees, PS will provide Subscriber with Support Services as set out below or in any Service Order or SLA. PS reserves the right to decline support where the Documentation reasonably answers Subscriber’s and/or End User’s inquiries.
7.1 Support Hours. PS shall provide Support Services by email during the times defined in any Service Order or SLA. Any additional types of Support Services requested by Subscriber shall be provided at PS’s then-current standard hourly rates for such services.
7.2 Subscriber Cooperation. Subscriber acknowledges and agrees that remote access, reasonable assistance, cooperation, complete and accurate information and data from Subscriber’s officers, agents and employees (collectively “Cooperation”) are essential to PS’s performance under this Agreement. If PS requests further information about an Error, Subscriber will promptly provide the requested information. Information requested by PS may include, by way of example and not limitation, reasonable detail and diagnostic information, manuals related to Subscriber’s hardware, network, or third-party software.
7.3 Updates. PS will make Updates available to Subscriber if, as and when it makes them generally available to other subscribers to the standard System, in accordance with PS’s internal software development plan and in PS’s reasonable business discretion. Updates will automatically become part of the System subject to the terms and conditions of this Agreement. Any Updates to the System will be made available, upon thirty (30) days’ notice, to the Subscriber, at the sole discretion of PS, which Updates the Subscriber must accept in order to maintain Access and to receive Support Services as provided in this Section.
7.4 Training. As a component of the Support Services and in consideration for the payment of the Subscription Fees, as provided further in attached Service Order(s), PS may provide Subscriber-designated employees with reasonable training in the use of the System sufficient to allow such employees (who possess reasonable requisite skills) to efficiently use and train other End Users to use the System for its intended purposes.
8. Additional Services; Change Orders.
8.1 Service Orders. In the event the parties determine that additional services, such as consulting, reporting, or software development for customization of the System, would be beneficial, PS shall perform the additional services agreed to by the parties in a Service Order (“Additional Services”), which shall set forth a description of the applicable Additional Services, deliverables, milestones, fees and payment terms, specifications, functionality, delivery, acceptance procedures and criteria, and other relevant terms. When both Parties have signed a Service Order, the Service Order shall be deemed incorporated into and made a part of this Agreement for all purposes.
8.2 Change Orders. In the event that either party desires to make changes to the Additional Services during the Term, such party shall so notify the other, and both parties shall (i) negotiate in good faith towards an agreement on necessary adjustments, if any, to the other terms of this Agreement or the applicable Service Order required to accommodate such changes; and (ii) embody any such agreement in a written, signed change order (a “Change Order”), which shall be deemed incorporated into and made a part of this Agreement for all purposes. PS shall have no obligation to perform that falls outside the Agreement unless such work is the subject of a Change Order.
9. Fees and Payment.
9.1 Subscription Fees. In consideration for the Access rights granted by PS to Subscriber in Section 5 (Access Rights and Restrictions), Subscriber shall pay to PS a Subscription Fee, as set forth in any Service Order.
9.2 Suspension for Nonpayment. The Subscriber acknowledges that the non-payment of any Fees due and owing will, at PS’s discretion, result in the suspension of Access for the Subscriber. However, if the Subscriber remedies the non-payment by making a payment in full of all fees due and owing, then PS, absent termination, may reinstate Access for the remainder of the Term.
9.3 Payment. Subscriber agrees to pay all Fees and other charges for the System and Services it obtains on the schedule set forth in and Service Order. PS may charge a late fee of 1.5% per month or the maximum rate allowable by law, whichever is greater, on any balance remaining unpaid for more than thirty (30) days, except that interest on payments by U.S. Government Subscribers will be calculated according to the Prompt Payment Act and its implementing regulations. Prices are exclusive of all applicable taxes. Subscriber agrees to pay all taxes (including but not limited to sales, use, excise, and value-added taxes), tariffs, duties, customs fees or similar charges imposed or levied on the System and Services it acquires pursuant to this agreement, with the exception of taxes on PS’s net income and employment-related taxes incurred by personnel employed by PS.
9.4 Pricing. Unless otherwise set forth herein or in any Service Order, all Fees are non-refundable.
10. Term and Termination.
10.1 Term. The term of this Agreement will commence on the Effective Date and continue for a period of three (3) years. Thereafter, the Agreement shall renew automatically for successive one (1) year periods, unless otherwise agreed in writing by the parties, unless either party gives notice of cancellation to the other at least thirty (30) days before expiration of the then-current term, or otherwise terminates the Agreement in accordance with Section 10.2 (Termination). If there is a current Software Order, Support Services, Professional Services, and/or Statement of Work in effect at the time termination is scheduled to occur, the Parties agree and acknowledge that the termination date will be effective as of the last date of termination in
any addendum to this Agreement.
10.2 Termination. This Agreement may be terminated in its entirety as follows: (i) either party may terminate this Agreement due to a material breach of the other party’s obligations, in which event the termination will be effective thirty (30) days after written notice to the other party, unless the other party
substantially cures the breach within the thirty (30) day period; (ii) PS may terminate this Agreement effective immediately upon written notice to Subscriber if Subscriber breaches any of its obligations under Section 5.2 (Access Restrictions); (iii) PS shall be entitled to terminate this Agreement effective immediately in the event of the occurrence of events reasonably out of PS’s control that affect PS’s ability to provide Access or Services (as provided in greater detail in Section 10.5); and (v) either party may terminate this Agreement effective immediately upon written notice to the other if a proceeding is commenced by or against the other party for relief under bankruptcy or insolvency laws or all or a substantial portion of the other party’s assets are transferred to a receiver or to an assignee for the benefit of creditors.
10.3 Effect of Termination. Upon termination of this Agreement if due to breach by PS, (i) Subscriber will promptly pay all amounts due to PS for Access and Services provided prior to the termination date; (ii) Subscriber and all End Users will immediately discontinue use of the System; and (iii) PS will have no further liability or obligation to provide Support Services or other Services being provided to Subscriber or End Users prior to the termination date. If termination is for breach of this Agreement by Subscriber, Subscriber agrees and acknowledges that it will be required to pay all amounts through the end of the term listed in any Software Order, Support Services, Professional Services, and/or Statement of Work in effect at the time even
if such services were to be rendered in the future.
10.4 Access to Subscriber Data. Subscriber, at Subscriber’s expense, shall be entitled to obtain its Subscriber Data at any time during the Term of this Agreement and for ninety (90) days after termination (the "Transition Period") by submitting a written request to PS. Depending on the volume of the Subscriber Data, PS will, within 30 days of the request, either post a link allowing Subscriber to download the Subscriber Data or work with Subscriber to deliver the data on other digital media or by an automated data feed in a format mutually agreed upon by the Parties. PS shall have no other obligation to save Subscriber Data or to send Subscriber Data to Subscriber. In the event Subscriber fails to pay undisputed invoices, PS shall not be obligated to retrieve Subscriber Data unless in conjunction with Subscriber’s payment of (i) any undisputed amounts due and (ii) PS’s reasonable fees for such services. Subscriber agrees and acknowledges that, while PS is entitled to continue to use Subscriber Data for purposes of PS Analytics, PS has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted (or otherwise disabled) after the Transition Period. If PS is requested to retain the Subscriber Data for longer than ninety (90) days, Subscriber agrees and acknowledges that Subscriber will be responsible for payment for such services.
10.5 Force Majeure. Except in relation to Subscriber’s payment obligations, a party affected by a Force Majeure Event will be released without liability from the performance of its obligations under this Agreement. "Force Majeure Event" means an event or circumstance beyond the reasonable control of a party that prevents that party from performing its obligations under this Agreement or which makes it commercially impracticable to do so, including, but not limited to, strikes, lockouts, and other labor disturbances; equipment failure; power or communication line failures; failure of third party service
providers or suppliers to perform; policies or restrictions of governments (including restrictions on export, import or other licenses); severe weather conditions or natural disasters; or vandalism, civil disturbances, war, or terrorist acts.
11. Confidential Information.
11.1 "Confidential Information" shall mean non-public information concerning a disclosing party (“Disclosing Party”) who discloses non-public information, such as software, systems, products, services, research and development; customers and prospective customers; business plans and finances, and similar information of a party (a) that is marked confidential, restricted or proprietary by Disclosing Party (or by any other person to whom such Disclosing Party has an obligation of confidence); or (b) is disclosed under circumstances where party receiving such information (“Receiving Party”) either knew or should have known that the information should be treated as confidential. Notwithstanding the foregoing, Confidential Information does not include any information that was publicly available before it was disclosed to the Receiving Party; becomes publicly available other than through a breach of this Agreement; is or has been disclosed to the Receiving Party free of any obligation to keep it confidential; or is developed independently by the Receiving Party. If Subscriber is a government agency or instrumentality, PS's Confidential Information is “Confidential Commercial Information” for purposes of 5 U.S.C. § 552(b)(4) or any comparable state or local law. For the avoidance of doubt, the System and Service Content are the Confidential Information of PS and Subscriber Data and any Subscriber-specific Reports are the Confidential Information of Subscriber. The Subscriber acknowledges that PS deems the terms and conditions of this Agreement, but not the parties to or the existence of this Agreement, to be confidential. Subscriber shall not make any statements or comments or publish any testimonials regarding the System or the Services without PS’s prior
express written consent, which PS shall be entitled to withhold in its discretion.
11.2 Each party will during the Term and for two (2) years beyond the expiration or termination of this Agreement (i) exercise at least reasonable care to maintain the confidentiality of the other’s Confidential Information; and (ii) disclose the other’s Confidential Information only to its employees, contractors and agents who have a need to know it for purposes contemplated by this Agreement and who are legally bound to protect it by restrictions at least as strict as those set forth in this section. Notwithstanding the foregoing, either party may disclose Confidential Information if served with a judicial or other governmental order seeking its production, in which event the party served with the order will use reasonable efforts to notify the other party of the existence of the order prior to production of any Confidential Information and cooperate with the other party in its efforts to obtain a protective order.
12. Marketing Practices/Audit Verification.
Subscriber shall: (a) avoid deceptive, misleading, or unethical practices that may be detrimental to PS or the System; (b) not make any representations, warranties or guarantees to any third party or entity on behalf of PS, concerning the System or its operation, usefulness or performance; (c) assume all costs, expenses, liabilities and responsibilities for the information and data, including Subscriber Data, input to the System; (d) assume all costs, expenses, liabilities and responsibilities in connection with any use, analysis, reliance, accuracy or guarantee of the System; and (e) comply with all
applicable federal, state and local country laws, internet laws and regulations and international treaties and pacts with respect to the subject matter of this Agreement. Further, PS shall be entitled, upon ten (10) business days’ written notice, to audit, at PS’s expense, and to conduct during regular business hours a selfaudit review and verification of the veracity and functionality of the System in the Subscriber’s environment, and to engage in testing procedures and processes to verify the System functionality and operation. Such audit and its results will be subject to Section 11 (Confidential Information).
13. Warranties; Disclaimer.
13.1 PS warrants that the System will be free from material operational Errors, except where any Errors are introduced directly or indirectly by subscriber. PS shall use reasonable efforts to remedy or fix Errors caused directly by PS, at its expense, if such Errors are discovered during the Access Period and PS is timely advised of such Errors by Subscriber. PS shall not be obligated to cure any Error in connection with the System unless the Subscriber notifies PS of the existence and nature of such Error promptly upon discovery. The foregoing shall be the sole and exclusive remedy available to Subscriber with respect to the System.
13.2 Subscriber assumes full responsibility and liability for the accuracy and reliability of any Subscriber Data, which the Subscriber inputs, in connection with the System and/or which is manipulated by Subscriber with the Administration Tools.
13.3 PS AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SYSTEM, SERVICE CONTENT AND SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, USABILITY, RELIABILITY, TITLE OR NON-INFRINGEMENT. IN PARTICULAR, PS DOES NOT REPRESENT THAT THE SYSTEM, SERVICE CONTENT OR SERVICES ARE ERROR FREE, WILL OPERATE IN AN UNINTERRUPTED MANNER, ARE COMPLETELY SECURE, OR WILL INTEROPERATE WITH OTHER THIRD-PARTY SOFTWARE OR SERVICES. THE SYSTEM, SERVICE CONTENT AND ALL HOSTED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE SUBJECT TO CHANGE OR TERMINATION AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. THE PROVISION OF THE HOSTED SERVICES BY PS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PS SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SUBSCRIBER ASSUMES ALL LIABILITIES, RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY RELIANCE ON THE SYSTEM, REPORTS OR SUBSCRIBER DATA; AND ACKNOWLEDGES THAT THE SYSTEM, REPORTS, AND CONTENTS THEREOF, ARE ONLY FOR REFERENCE PURPOSES AND ARE SIMPLY A SINGLE TOOL TO BE USED IN AN ANALYSIS OF ANY PREDICTABILITY IN CONNECTION WITH ISSUES REGARDING EMPLOYEE IMPAIRMENT; AND ARE NOT TO BE RELIED UPON, SOLELY, WITH RESPECT TO ANY BUSINESS DECISIONS OR SAFETY ACTIONS OR
ACTIVITY. ANY SUBSCRIBER DATA INPUT IS THE SOLE RESPONSIBILITY OF THE SUBSCRIBER, AND THE SUBSCRIBER ASSUMES THE ENTIRE LIABILITY FOR THE ACCURACY AND RELIABILITY OF ANY SUBSCRIBER DATA OR REPORT GENERATED THEREFROM, AND PS MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE FOREGOING.
13.4 No Legal Advice. PS EMPLOYEES, CONSULTANTS, REPRESENTATIVES OR CONTRIBUTORS ARE NOT AUTHORIZED TO GIVE ADVICE, INTERPRETATION, EXPLANATION OR ANALYSIS OF ANY REPORT GENERATED NOR MAY THE SUBSCRIBER RELY OR USE SUCH ADVICE IF SO GIVEN FOR ANY PURPOSE. IF SUBSCRIBER HAS ANY QUESTIONS OR SEEKS ANY ADVICE REGARDING THE DATA CONTAINED IN ANY
REPORT, SUBSCRIBER SHOULD CONTACT ITS OWN LEGAL COUNSEL.
13.5 Use of System Result. Subscriber agrees and acknowledges that the Service only provides information about how an End User performs based on the tests available through the Service. The Service is not intended to provide complete information as to whether someone is unable to perform services. Rather, the Services is intended to be a first test that, if failed, such failure is reported to those individuals listed in End Users profile so face to face interaction can occur to determine End User’s ability to perform further services. Subscriber agrees and acknowledges that it should have additional policies and procedures in place to ensure that a safe working environment is provided to all employees and third parties.
14. Exclusion of Damages and Limitation of Liability.
14.1 Exclusion of Damages. EXCEPT FOR SUBSCRIBER’S INDEMNITY OBLIGATIONS UNDER SECTION 0, NEITHER PARTY, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, OR LICENSORS, WILL HAVE ANY LIABILITY TO THE OTHER (OR, IN THE CASE OF PS, TO ANY END USERS) FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR DAMAGES ARISING FROM FATIGUE, ALERTNESS OR OTHER ASPECTS OF HUMAN BEHAVIOR THAT MAY OR MAY NOT BE MONITORED BY THE SYSTEM) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SYSTEM, OR THE SERVICES, EVEN IF PS OR SUBSCRIBER HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Liability. PS’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL AND PROVABLE DAMAGES UP TO THE TOTAL AMOUNT OF ALL FEES PAID TO PS BY SUBSCRIBER IN THE TWELVE MONTHS PRIOR TO THE DATE THAT THE INCIDENT LEADING TO LIABILITY OCCURRED.
14.3 Savings Clause. THE EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT HAVE BEEN EXPRESSLY BARGAINED FOR BY THE PARTIES AND REFLECT A KNOWING ALLOCATION OF THE RISKS INHERENT IN IT, AND THEY WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IF THE
EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE HELD TO BE UNENFORCEABLE IN ANY RESPECT UNDER APPLICABLE LAW, PS'S AGGREGATE LIABILITY WITH RESPECT TO ALL CLAIMS WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. Indemnity. Subscriber shall indemnify and hold PS harmless from and against all claims, costs, liabilities, damages, and judgments (including reasonable attorney’s fees and court costs) that PS may suffer or incur related to third party claims arising from: (i) Subscriber’s use and/or reliance, in any manner, on the System in connection with any Subscriber business activity; (ii) Subscriber’s breach of its obligations under this Agreement; (iii) Subscriber’s business arrangements with any third party in connection with this Agreement; (iv) the Subscriber Data, as input, edited or modified by Subscriber or its End Users; or (v) Subscriber Data manipulation or processing by Subscriber that generates inaccurate, erroneous, corrupted or missing Subscriber Data, whether or not included in a Report.
15. U.S. Government Subscribers and End Users.
15.1 The System is a “commercial item” as defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," provided with RESTRICTED RIGHTS. For government agency purchases or acquisitions, other than DOD acquisitions subject to 5.3, under the authority of Federal Acquisition Regulation (“FAR”) Part 12, the rights of use, reproduction, and disclosure are only as stated in Section 5 of this Agreement. For government purchases or acquisitions by the Department of Defense, the rights of use, reproduction, and disclosure are only as stated in Section 5 of this Agreement, per DFARS 227.7202 (48 C.F.R. §227-7202).
15.2 The System and Services are “commercial items” as defined at 48 C.F.R. 2.101, consisting of "commercial computer software," and "computer software documentation." For government purchases or acquisitions through a GSA Supply Schedule contract, the government Subscriber and End User accept the standard, commercial PS warranty terms per ¶ 3.a of GSA’s “Terms and Conditions Applicable to . . . [SINs] 132-32 . . ., 132-33 . . . and 132-34.” For government purchases or acquisitions under the authority of Federal Acquisition Regulation (“FAR”) Part 12, the government Subscriber and End User accept the standard, commercial PS warranty terms and FAR 52.212-4(p). For all government purchases or acquisitions that are
not through a GSA Multiple Award or Federal Supply Schedule contract, the government Subscriber and end user accept the standard, commercial PS warranty per FAR 46.709.
16. General Provisions.
16.1 Compliance with Laws; Export and Import Restrictions. Subscriber will comply with all applicable laws and regulations of governmental bodies and agencies in its use of System and Services and its performance under this Agreement. In particular, Subscriber acknowledges that the System is subject to United States export laws and regulations. The System and Services also may be subject to the export, import or other laws of other jurisdictions. Subscriber will not use or transfer the System or Services in violation of any U.S. or foreign laws or regulations, or permit others to do so.
16.2 Waiver. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.
16.3 Successors and Assigns. Subscriber shall not, without the prior written consent of PS (which consent will not be unreasonably withheld by PS) assign or transfer this Agreement, in whole or in part. Any attempted assignment in contravention of this Section 16.3 shall be void. PS shall be entitled to assign or otherwise transfer this Agreement without Subscriber’s consent to an affiliate of PS or to any third party who succeeds to substantially all of PS’s business, stock or assets or who succeeds as owner of any PS technology related to this Agreement. Each party’s rights and obligations under this Agreement will bind and inure to the benefit of its successors and permitted assigns.
16.4 Notices. Any notice or other communication required or desired to be given in connection with this Agreement will be in writing and will be sent by post, express courier or facsimile. Notices sent to each party should be directed to the address indicated above. Either party may change its address for notices under this Agreement by giving the other party notice of that change.
16.5 Governing Law and Language; Disputes.
16.5.1 In the event of a dispute, prior to any formal action being taken, the parties shall try and resolve this dispute at the executive level within thirty (30) days following receipt of written notice that a dispute exists. If such dispute is not resolved within such thirty (30) days, then the parties may resort to formal action in the form of arbitration as provided below in Section 16.5.3.
16.5.2 This Agreement shall be governed by the laws of the State of Colorado applicable to contracts entered into and to be performed entirely within the State of Colorado, without regard to the principles of conflicts of law, and if a claim or controversy arises, such claim or controversy shall be submitted to binding arbitration in Denver, Colorado as provided in Section 16.5.3. PS shall be entitled to seek all available legal and equitable remedies. With regard to any claims hereunder for damages, the prevailing party shall also be entitled to reasonable attorney’s fees and arbitration costs. All limitations of liability as recited herein shall apply to any award. Notwithstanding the provisions of this Section regarding arbitration, PS or the Subscriber may proceed to any court of competent jurisdiction to obtain immediate injunctive relief with regard to protecting any Intellectual Property Rights or Confidential Information.
16.5.3 For all claims submitted to binding arbitration, the parties agree to have the claim(s) submitted before three arbitrators and conducted pursuant to the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”). Each party shall pick one arbitrator from the panel list supplied by the AAA, and the third arbitrator shall be chosen by the two appointed by the parties. The parties agree that the award of the Arbitrators shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to the Arbitrators. The decision of the Arbitrators shall be final, binding and incontestable and may be used as a basis for judgment, thereon in Colorado, or elsewhere as the situation dictates. Pending the submission to arbitration and thereafter, until the Arbitrators publish their decision, the parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment in accordance with the arbitrator’s award.
16.6 Severability. If any provision of this Agreement is declared void, illegal or unenforceable, the provision will be deemed amended as necessary to conform to applicable laws or regulations. If the provision cannot be so amended without materially altering the intention of the parties, the remainder of the Agreement will continue in full force and effect as if the offending provision were not a part of this Agreement.
16.7 Survival. The parties’ respective rights and obligations under Sections 4, 9, 10, 11, 12, 13.2, 13.3, 13.4, 14, 0, 16 will survive the termination of this Agreement. In addition, any right or legal obligation of a party contained in any Service Order that, by its express term or nature, would reasonably extend for a period beyond the term of the Agreement will also survive the termination of the Agreement for such extended period.
16.8 Publicity. Subscriber agrees and acknowledges that PS may publicize the existence of this Agreement and that Subscriber is a user of the System in its sales and marketing literature, including, but not limited to, using Subscriber’s name, trademarks, and trade names.
16.9 Scope; Entire Agreement; Amendment. This Agreement, including all Service Orders, is the complete and exclusive statement of the parties’ agreement with respect to its subject matter, and it supersedes all prior communications, understandings and agreements, as well as the terms and conditions set forth in or on any purchase order, acknowledgement form or similar document Subscriber may issue, or printed on any check or other document or instrument transmitting or accompanying payment in connection with this Agreement. In the event of a conflict between a provision in the main text of this Agreement and a provision in a Service Order, a specific statement in a Service Order will take precedence over a contradictory or
inconsistent statement in the main text of this Agreement for that Service Order only. In the event of a conflict between a provision in the main text of this Agreement and a provision in a Statement of Work, a specific statement in a Statement of Work will take precedence over a contradictory or inconsistent
statement in the main text of this Agreement for that Statement of Work only. This Agreement may be modified or amended only by adding a Service order agreed to in writing by the Parties.