USER ACCESS AGREEMENT
This Agreement (“Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below) and is an agreement between Convergent Science, Inc. (“CSI”) and you and the entity or organization you represent (collectively referred to herein as “Customer”). This Agreement is binding on you effective when you click an “I Accept” or “I Agree” button or check box presented with this Agreement or, if earlier, when you used the Service (“Effective Date”).
CONVERGENT SCIENCE, INC., PROVIDES THE SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “I ACCEPT” OR “I AGREE” BUTTON OR CHECK BOX PRESENTED WITH THIS AGREEMENT OR BY USING THE SERVICE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS; AND (B) REPRESENT AND WARRANT THAT: (I) IF AN INDIVIDUAL, YOU HAVE REACHED THE AGE OF MAJORITY OR LEGAL AGE IN YOUR JURISDICTION AND CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND YOURSELF TO ITS TERMS AND CONDITIONS; AND (III) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY (WHETHER AS AN EMPLOYEE, CONTRACTOR, AGENT, OR OTHERWISE), YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON ITS BEHALF AND BIND SUCH CORPORATION OR OTHER LEGAL ENTITY TO ITS TERMS AND CONDITIONS OR THAT AN AUTHORIZED REPRESENTATIVE THAT HAS LEGAL AUTHORITY TO BIND THAT ENTITY HAS ACCEPTED THIS AGREEMENT OR HAS PROVIDED YOU WITH THE AUTHORITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CONVERGENT SCIENCE, INC., WILL NOT AND DOES NOT AGREE TO PROVIDE THE SERVICE OR SOFTWARE TO YOU AND YOU MUST NOT USE THE SERVICE, THE HORIZON PLATFORM, SOFTWARE, OR DOCUMENTATION.
SECTION 1 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
- “Agreement” means this user access agreement.
- “CSI” means Convergent Science, Inc., a Wisconsin, USA, corporation.
- “Confidential Information” means any information or material that is confidential, secret, or otherwise not generally available to the public, including, but not limited to, software, source code, object code, input file, software architecture, model, user interface, algorithm, formula, equation, pattern, method, process, compilation, technique, engineering, analysis, skill, invention, know-how, information, knowledge, technical data, design, drawing, template, training materials, user documentation, research and development project, prototype, non-public aspect of a party’s business and operations, marketing plans and initiatives, business contact information, potential business affiliation, financial data, customer list, costing and mark-up information, and information that a party is required to keep confidential in accordance with confidentiality obligations to third-parties, regardless of whether disclosed in writing, verbally, observed visually, by electronic or other data transmission, or in any other form or media whatsoever, or obtained through on-site visits, and whether furnished or made available before or after the date of this Agreement.
- “Customer” means the entity, organization, academic institution, or government on behalf of which you are accepting this Agreement. You will be deemed to be the Customer if you are an individual whose use of the Service, the Horizon Platform, and/or the Software is entirely unaffiliated with, and unrelated to, any employer or other entity.
- “Data Center” means a particular location where the Equipment is located.
- “Documentation” means user guides, specifications, documents, and other materials related to the Software that are made available from time to time by CSI in electronic or tangible form.
- “Equipment” includes hardware devices and components located within the Data Center(s) used to host the Service, including, without limitation, computers, servers, nodes, CPU cores, memory, and networking hardware, including “bare metal,” as well as virtual hardware.
- “Force Majeure” means acts of God; utility or transmission failures; communications failures; third-party software failures; electronic failures; mechanical failures; power failures; strikes, employee insurrections, disorder, or other labor disturbances; third-party supplier failures; trade wars; acts of war, terror, or of a public enemy; riots, protests, or civil unrest; floods, hurricanes, tornadoes, sabotage, vandalism, fire, earth quakes, volcanic eruptions, natural or other disasters; widespread illness, epidemics, or pandemics; explosion; embargo; government requirement or order; civil or military authority; government regulation; government shut-down; government inaction; acts or omissions of carriers; or other causes beyond the reasonable control of a party or its agents, contractors, or suppliers.
- “Horizon Platform” means the Equipment and other hardware, operating systems and other associated software, and the facilities within CSI’s or CSI’s contracted Data Centers to provide an online, cloud-based, high-performance computing environment that enables Users to run Jobs that involve the use of the Software on the Horizon Platform.
- “Job” means the implementation of a workflow on the Horizon Platform whether or not such workflow uses the Software.
- “Login Credentials” means the specific information needed to authenticate a User to allow access to the Service. Login Credentials may include a user identification and password pairing, but may also include personal questions only a User can answer, bio-metric identification, or other methods for authenticating a User.
- “Open-Source Components” means any software component, library, utility, tool, or other computer code that is subject to an open-source copyright license agreement. Open-source copyright license agreements include, but are not limited to, license agreements that substantially conform to the “Open Source Definition” as prescribed by the Open Source Initiative or otherwise may require third-party disclosure or licensing if any source code of such software components is used or compiled.
- “Related Parties” means the shareholders, members, directors, officers, employees, subsidiaries, contractors, agents, attorneys, representatives, successors, and assigns of Convergent Science, Inc.
- “Service” means the Horizon Platform and the specific edition of the Software that is accessible via the internet at the designated URL, website, or IP address, and any ancillary online or offline products and services provided to Customer and to which Customer is being granted access under this Agreement, including related updates, upgrades, patches, change management, and maintenance for the Service.
- “Software” means CSI’s CONVERGE® computational fluid dynamics software and related software program(s), module(s), or component(s) when accessed and used on the Horizon Platform.
- “Term” is defined in Section 6.1 of this Agreement.
- “Trade Secret” means any and all documents and information relating to CSI or Customer that meet the definition of a Trade Secret under applicable state law or under the federal Defend Trade Secrets Act of 2016. Examples of Trade Secrets may include, but are not limited to, source code, software architecture, formulas, patterns, compilations, programs, devices, methods, techniques, processes, product costs and mark-up information, and service costs and mark-up information.
- “User” means an individual who is authorized to use the Service, the Horizon Platform, or the Software and who has been supplied Login Credentials by CSI, as well as the corporation or other legal entity for which the individual is accepting this Agreement. “Users” do not include Customer’s customers, clients, vendors, or contractors, or other persons who do not have Login Credentials.
- “User Data” means any data, information, or material in electronic form residing on the Horizon Platform or in the Service environment that is provided or submitted to the Service by Customer or User in the course of using the Service.
- “You” means the individual who is entering into this Agreement on behalf himself or herself, or on behalf of an entity, organization, academic institution, or government.
SECTION 2 ACCESS AND RESTRICTIONS
- Initial Grant. Subject to the provisions of this Agreement, CSI grants to Customer, and Customer hereby accepts, a limited, personal, non-exclusive, non-transferable right for Customer to access and use the Service according to the terms of this Agreement. Customer acknowledges that CSI has no delivery obligation and will not ship or otherwise provide Customer with copies of any software programs, whether in a physical or downloadable format. Customer agrees that it does not acquire any license to any software programs under this Agreement. CSI may revise features and functions of the Service at any time by removing, adding, or modifying such features or functions. Any right granted under this Agreement is conditioned on Customer remaining in compliance with all terms and conditions of this Agreement. Upon the termination or expiration of this Agreement (or the Service provided hereunder) or any related license agreements, Customer’s right to access and use the Service, the Horizon Platform, and the Software shall terminate.
- Prohibitions. Customer receives no title to, or ownership of, the Service, the Horizon Platform, or the Software. The rights granted to Customer under this Agreement are limited to the express terms hereof. Specifically, except as provided herein, and subject to the Open-Source Components license terms, if applicable, no right is granted to Customer to, and Customer shall not: (i) license, sublicense, sell, resell, transfer, export, re-export, assign, distribute, grant access to, or otherwise exploit or make available to any third-party the Service, the Horizon Platform, or the Software; (ii) allow third-parties to access or use the Service, the Horizon Platform, or the Software; (iii) provide Login Credentials or other log-in information to any third-party; (iv) allow User Login Credentials and passwords to be shared or used by more than one individual User; (v) share non-public features or content with any third-party; (vi) attempt to reverse engineer, decompile, recompile, disassemble, modify, translate, or make any attempts to discover the source code of the Service, the Horizon Platform, or the Software or make derivative works from the Service, the Horizon Platform, or the Software; (vii) breach or circumvent any security device or intended protection used for or contained in the Service, the Horizon Platform, or the Software; (viii) intentionally send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ix) interfere with or disrupt the integrity or performance of the Service, the Horizon Platform, the Software, or the data contained therein; (x) use the Service, the Horizon Platform, or the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or any applicable law; (xi) use the Service, the Horizon Platform, or the Software for the purposes of (a) benchmarking, testing, or comparative or competitive analysis of the Service, the Horizon Platform, or the Software; (b) developing, using, marketing, or providing a competing service, platform, or software product or service; or (c) any other purpose that is to CSI’s detriment or commercial disadvantage; (xii) frame or mirror any content forming part of the Service, the Horizon Platform, or the Software; or (xiii) permit any third-party to do any of the foregoing. In the event that CSI reasonably suspects any breach of the requirements of this Section 2, CSI may suspend your and any other applicable User’s or Customer’s access to the Service, the Horizon Platform, or the Software, in addition to such other remedies as CSI may have.
- No Competitive Activity. Customer shall not access the Service, the Horizon Platform, or the Software if Customer is or becomes a competitor of CSI. In addition, Customer may not access the Service, the Horizon Platform, or the Software for competitive purposes, including monitoring service availability, performance, or functionality, or for any other benchmarking or competitive purpose.
- Interruption of Service. CSI and its Related Parties shall not be liable for any delay, outage, interruption, or failure of the Service, the Horizon Platform, or the Software, including, without limitation, where the delay, outage, interruption, or failure results from (a) scheduled maintenance; (b) acts or omissions of Customer or any User; (c) failure in Customer’s or third-party (not under CSI’s control) or Users’ equipment or telecommunication lines connecting Customer and its Users to the Service, the Horizon Platform, or the Software; or (d) any Force Majeure event.
- Customer Support. CSI provides basic information, documentation, and reasonable telephone or email support to trained Users of the Service. Customer is responsible for obtaining any additional support regarding its use of the Service, the Horizon Platform, and/or the Software, which may include various paid support options.
- Internet Access. The Service requires an internet connection and Customer shall be solely responsible for obtaining an internet connection for the purpose of accessing the Service. Customer and its Users voluntarily engage in the activity of internet use and bear the risks associated with that activity. Data throughput and upload and download speeds are not guaranteed. Throughput and upload and download speeds can vary significantly based on many factors, including the client computer device and system resources, as well as internet connection speed bandwidth and the quality of the connection. CSI exercises no control over and expressly disclaims any obligation to monitor Customer and its Users with respect to their use of the internet.
- Third-Party Software. The Software may be bundled with services or software programs that are owned by third-parties and distributed or otherwise made available by CSI under license from the third-party owner. These third-party services and software programs may be governed by their own license terms and, in such case, those terms will prevail over this Agreement as to Customer’s use of the third-party services and software programs. Other third-party services and software programs may be sublicensed to Customer under the terms of this Agreement. In all cases, CSI has no warranty or maintenance obligations for any third-party software products. Changes to the Software package that CSI may make from time to time or the unavailability of sublicensing for such third-party software programs may make it necessary for Customer to acquire, at Customer’s own expense, separate versions of the third-party software programs, if Customer chooses to continue to use such third-party software or, if such third-party software programs are no longer available, Customer may be required to stop using such third-party software programs. In the event CSI is no longer able to sublicense a third-party software program to Customer, CSI may terminate the sublicenses for such software upon reasonable notice to Customer.
- Open-Source Licenses. Should the Software include any Open-Source Components, Customer’s use of the Open-Source Components shall be governed by, and subject to, the terms and conditions of the related open-source and public licenses. CSI will provide Customer with the license name, author information, license source, access information, and other relevant information for Open-Source Components as required under the license terms for each Open-Source Component.
- Unauthorized Use. The Service, the Horizon Platform, and/or the Software may contain security features that prevent unauthorized or illegal use. Customer acknowledges and agrees that CSI may use these features and other lawful measures to verify Customer’s compliance and to enforce CSI’s rights under this Agreement.
- No Other Rights. Except as expressly provided in this Section 2 of this Agreement, no right or license is granted by CSI to Customer under this Agreement under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, whether express or implied.
SECTION 3 USERS' RESPONSIBILITIES
- Customer’s Security Obligations. Customer and its Users shall use and maintain reasonable security precautions in light of Customer’s and its Users’ use of the Service, the Horizon Platform, and/or the Software. Customer and its Users shall take reasonable steps to prevent unauthorized access to the Service, the Horizon Platform, and the Software, including without limitation, by protecting Login Credentials, passwords, and other login information.
- Compliance with Law. Customer and each of its Users is responsible for all activity occurring under their respective user accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Users’ use of the Service, the Horizon Platform, and the Software, including those related to data privacy, international communications, and the transmission of technical or personal data.
- No Interference with Service. Customer and its Users shall not intentionally: (i) send or store material, files, or data containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ii) interfere with or disrupt the integrity or performance of the Service, the Horizon Platform, or the Software, or the data contained therein, or the Data Centers or related systems or networks; or (iii) attempt to gain unauthorized access to the Service, the Horizon Platform, or the Software, or Data Centers or related systems or networks. In the event that CSI suspects any breach of the requirements of this Subsection, CSI may suspend Customer’s or User’s access to the Service, the Horizon Platform, and/or the Software, in addition to such other remedies CSI may have.
- Notification. Company and its Users shall promptly: (i) notify CSI and use reasonable efforts to stop, and provide assistance to CSI to stop, any actual or threatened breach of the prohibitions provided in Section 2 of this Agreement; (ii) notify CSI of any unauthorized use of any Login Credentials, user identification, password, account, or any other known or suspected breach of security and shall use reasonable efforts to stop such breach; (ii) report to CSI and use reasonable efforts to stop any unauthorized copying or distribution of Content that is known or reasonably suspected by Customer or its Users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service, the Horizon Platform, or the Software.
- Monitoring by CSI. Customer shall permit CSI to monitor Customer’s and its Users’ use of the Service, the Horizon Platform, and the Software. Any such monitoring shall not unreasonably interfere with Customer’s or its Users’ use of the Service, the Horizon Platform, or the Software. CSI may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third-parties. Such reporting may include disclosing customer information. CSI may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third-parties to assist with the investigation and prosecution of illegal conduct by providing additional information related to such alleged violations.
- Warranties. Customer represents and warrants that the User Data does not infringe upon or misappropriate any third-party intellectual property rights, including, but not limited to, any patent, copyright, trademark, or trade secret right, and such User Data does not otherwise violate any law.
SECTION 4 THE SERVICE AND SYSTEM ENVIRONMENT
- Service Location. CSI reserves the right to provide the Service, the Horizon Platform, or the Software from any location and through use of subcontractors.
- System Revisions. CSI may revise features and functions of the Service, the Horizon Platform, or the Software at any time by removing features or functions or by adding features or functions.
- Security Breaches. Customer acknowledges that CSI does not control the transfer of data over telecommunications facilities, including the internet, and therefore, except as provided in this Agreement, CSI does not warrant secure operation of the Service, the Horizon Platform, or the Software or that it will be able to prevent third party disruptions of the Service, the Horizon Platform, or the Software. Except as provided in this Agreement, CSI and its Related Parties are not responsible for any security breaches affecting any equipment, servers, or accounts under Customer’s or its Users’ control unless solely caused by CSI or its Related Parties. If Customer’s or its Users’ equipment or servers are responsible for or involved in an attack on or unauthorized access into the Service, the Horizon Platform, or the Software or another CSI server or system, then upon learning of such attack or unauthorized access, Customer and/or its applicable User shall promptly notify CSI, and, in any event, CSI will have the right to respond accordingly, including, without limitation, the right to identify, isolate, and block the source of the attack.
- Prohibited Data. Customer and its Users are prohibited from uploading, transmitting, and/or storing to the Service, the Horizon Platform, and the Software the following types of data and information: any information or data that would require or otherwise necessitate compliance with the Payment Card Industry (PCI) Data Security Standard (DSS), credit card numbers, bank/financial account numbers, health information, social security numbers, driver's license numbers, or passport or visa numbers.
- Data Storage. CSI and its Related Parties make no guarantees about retaining any data stored on the Service, the Horizon Platform, or the Software following expiration or termination of this Agreement. Customer and its Users will not have access to User Data stored on the Service, the Horizon Platform, or the Software during a suspension or following expiration or termination of this Agreement.
- Data Security. Facilities used to store and process data adhere to industry security standards no less protective than the security standards at facilities where CSI processes and stores its own information of a similar type. In the event of a breach, CSI shall promptly notify Customer and employ reasonable means to remediate such breach.
- Response to Incidents. CSI evaluates and responds to incidents that create suspicions of unauthorized access to the Service, the Horizon Platform, or the Software or the handling of User Data. If CSI determines that Customer's or its Users’ data has been misappropriated, CSI will report such misappropriation to Customer or its Users as soon as practicable after making such determination, unless prohibited by law.
- User Activity. In no event will CSI or its Related Parties have any liability to Customer or its Users for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Service, the Horizon Platform, or the Software through Customer’s or its Users’ accident, fraud, or other improper means or devices by Customer or its Users.
SECTION 5 FEES
Customer shall pay all fees and charges related to the access to, and use of, the Service, the Horizon Platform, and/or the Software. CSI will monitor Customer’s usage of the Service, the Horizon Platform, and/or the Software and will compute the total fees owed by Customer to CSI as a result of such usage, after taking into account the remaining amount of any deposits or other fees. The fees applicable to Jobs run by Customer will be accessible via the Service interface. Such rates may also be specified, in whole or in part, in an order form or other agreement between Customer and CSI. CSI may modify such fees and charges at any time without notice.
SECTION 6 TERM AND TERMINATION AND/OR EXPIRATION OF TERM
- Term. This Agreement is effective as of the Effective Date and shall continue for the duration of Customer’s use of the Service, the Horizon Platform, or the Software unless terminated pursuant to Section 6.2 of this Agreement (“Term”). Customer’s access to and use of the Service, the Horizon Platform, and the Software remains conditional and is contingent on Customer remaining in compliance with this Agreement.
- Termination by CSI. CSI may terminate this Agreement and the rights granted hereunder upon notice to Customer if Customer breaches a material term of this Agreement or if the Service, the Horizon Platform, or the Software is no longer offered by CSI.
- Effect of Termination or Expiration. Upon termination of this Agreement or the Service, the Horizon Platform, or the Software for any reason or upon the expiration of the then current Term, all rights granted to Customer under this Agreement cease, including, but not limited to, Customer’s right to access and use the Service, the Horizon Platform, and the Software under Section 2 of this Agreement and further including any perceived right Customer believes may remain to access the Service, the Horizon Platform, or the Software after termination.
- Suspension of Service. CSI may suspend, terminate, or otherwise deny Customer's, any User's, or any other person's access to or use of all or any part of the Service, the Horizon Platform, or the Software, without incurring any resulting obligation or liability, if: (a) CSI receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires CSI to do so; or (b) CSI believes, in its sole discretion, that: (i) Customer or any User has failed to substantially comply with, any material term of this Agreement, or accessed or used the Service, the Horizon Platform, or the Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of CSI; (ii) Customer or any User is, or has been, involved in any fraudulent, misleading, or unlawful activities involving the Service, the Horizon Platform, or the Software; or (iii) this Agreement expires or is terminated. This Subsection does not limit any of CSI’s other rights or remedies, whether at law, in equity, or under this Agreement and shall not excuse Customer from any obligation to make payment(s) under this Agreement or any other agreement still in effect.
SECTION 7 NO WARRANTY AND DISCLAIMER
- CSI DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT CSI WILL CORRECT ALL ERRORS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CSI DOES NOT CONTROL THE TRANSFER OF DATA OVER THIRD-PARTY COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY COMMUNICATIONS FACILITIES AND THAT CSI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SERVICE, THE SOFTWARE, DOCUMENTATION, AND ANY SERVICES PROVIDED BY CSI RELATED TO THE SOFTWARE AND ANYTHING, WHETHER TANGIBLE OR OTHERWISE, ARISING FROM OR RELATING TO THE SERVICE OR SOFTWARE OR OTHERWISE PROVIDED OR FACILITATED BY CSI ARE PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER STATUTORY, EXPRESS OR IMPLIED, OR ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CSI SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, PATENT VALIDITY, OPERATION WITHOUT INTERRUPTION, ACHIEVEMENT OF CUSTOMER’S REQUIREMENTS OR INTENDED RESULTS, OR COMPATIBILITY WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CSI OR AN AUTHORIZED REPRESENTATIVE OF CSI SHALL CREATE A WARRANTY. WITHOUT LIMITING THE FOREGOING, CSI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, THE SOFTWARE, OR DOCUMENTATION IS OR WILL BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE OR ERROR.
- ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ANY OPEN-SOURCE COMPONENTS OR THIRD-PARTY REPRESENTATION OR WARRANTY IS STRICTLY LIMITED TO CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS AND UNRELATED TO CSI.
- CUSTOMER’S SOLE REMEDY FOR DISSATISFACTION OF ANY NATURE WITH THE SERVICE, THE HORIZON PLATFORM, OR THE SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THE EVENT THAT THE SERVICE FAILS TO PERFORM SUBSTANTIALLY AS WARRANTED IN THIS AGREEMENT) IS TO STOP USING THE SERVICE AND TERMINATE THE AGREEMENT.
- THE PARTIES INTEND THAT THE LIMITATIONS, LIMITED REMEDIES, AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
SECTION 8 LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHAT CAUSE OF ACTION OR CLAIM FOR RELIEF IS ASSERTED, UNDER NO CIRCUMSTANCES SHALL CSI OR ITS RELATED PARTIES BE LIABLE FOR ANY OF THE FOLLOWING: (I) DIRECT DAMAGES IN EXCESS OF $1,000; (II) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLES, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER OR CUSTOMER’S AFFILIATES BY ANY THIRD PERSON) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICES OR SOFTWARE PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF CSI OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (III) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY CSI TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND CSI’s REASONABLE CONTROL; OR (IV) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.
- THE PARTIES INTEND THAT THE LIMITATIONS, LIMITED REMEDIES, AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
SECTION 9 INDEMNIFICATION
Customer agrees that to the fullest extent permitted by law, Customer shall indemnify, defend, and hold harmless CSI and its Related Parties from and against all claims, suits, demands, damages, losses, costs, and expenses (including, without limitation, attorneys’ fees, liquidated damages, penalties or interest) arising directly or indirectly out of any (a) claims arising out of Customer’s use of the Service, the Horizon Platform, or the Software; (b) Customer’s inability to access, use, or connect to the Service, the Horizon Platform, or the Software; (c) information transmitted through or stored on the Service, the Horizon Platform, or the Software; (d) material breach of this Agreement by Customer or any of its Users; (e) use of the Service, the Horizon Platform, or the Software beyond the scope of this Agreement; (f) acts or omissions in connection with any of the above; and (g) a material breach of this Agreement by Customer or any of its Users; provided, however, that CSI shall have the right to approve, in its reasonable discretion, the selection of attorneys engaged by Customer to settle or defend such claims or suits and Customer shall not settle any claim or suit without the prior written approval of CSI, which shall not be unreasonably withheld, conditioned, or delayed. This indemnity shall survive the termination or expiration of this Agreement.
SECTION 10 PROPRIETARY RIGHTS
- CSI’s Intellectual Property. Customer acknowledges and agrees that the Service, the Horizon Platform, and the Software contain proprietary information and material that is protected by applicable intellectual property and other laws. All right, title, and interest in and to the Service, the Horizon Platform, the Software, and source code and Documentation, whether tangible or intangible, including, but not limited to, patent, copyright, trademark, and Trade Secret rights and further including all right, title, and interest in and to any software code, graphics, images, animations, video, and text, incorporated into the Service or the Software, and any and all copies of the Service, the Software, and Documentation are owned by CSI subject only to the rights within any Open-Source Components and the limited rights granted to Customer under this Agreement. Nothing in this Agreement grants any implied rights to Customer, including by implication, waiver, or estoppel, in any intellectual property rights or other right, title, or interest in any portion of the Service, the Software, or Documentation.
- U.S. Government Restricted Rights. The Service, the Horizon Platform, the Software, and related Documentation are Commercial Items, as that term is defined in 48 C.F.R. § 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as those terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If the Service, the Horizon Platform, the Software, or related Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 C.F.R. § 227.7202-4 (for Department of Defense licenses only) and 48 C.F.R. § 12.212 (for licenses with all federal government agencies), the government’s rights to the Service, the Horizon Platform, the Software, and related Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. Unpublished-rights are reserved under the copyright laws of the United States. This Section does not grant Customer any rights not specifically set forth in this Agreement.
- Equitable Relief. Customer acknowledges that any use or disclosure of CSI’s proprietary rights, marks, information, or material as described in this Section in a manner inconsistent with the provisions of this Agreement will cause CSI irreparable damage for which remedies other than injunctive relief will be inadequate, and Customer agrees that CSI shall be entitled to injunctive or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement.
SECTION 11 MUTUAL CONFIDENTIALITY
- Non-Disclosure. A party (“Receiving Party”) shall not disclose the Confidential Information or Trade Secrets of the other party (“Disclosing Party”) to any third-party or parties not directly affiliated with the Receiving Party. In addition, the Receiving Party shall not use Confidential Information or Trade Secrets for the benefit of itself outside of the scope of this Agreement, or for the benefit of any third-party or parties not directly affiliated with the Receiving Party without the written consent of Disclosing Party.
- Exceptions. The confidentiality and non-use obligations herein shall not apply to any such information (i) that is or becomes publicly known through some non-confidential source other than the Disclosing Party and without any fault of or participation by the Receiving Party, (ii) that was in the Receiving Party’s possession prior to the time it was received from the Disclosing Party or came into the Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than the Disclosing Party and not subject to any obligation of confidentiality or restriction on use; (iii) was developed independently by the Receiving Party without reference to any information disclosed by or obtained from the Disclosing Party, as demonstrated by the Receiving Party’s written records; or (iv) that is required to be disclosed by court order, governmental agency, operation of law or pursuant to judicial, administrative or regulatory process, provided the Receiving Party gives the Disclosing Party prompt notice of such prospective disclosure to permit the Disclosing Party an opportunity to move for a protective order or other appropriate relief.
- Reasonable Actions. The Receiving Party shall take such reasonable actions with its employees, contractors, and agents as necessary to effectuate the intent of this provision and the confidentiality obligations imposed by this Agreement. Upon learning of any disclosure of the Disclosing Party’s Confidential Information or Trade Secrets not permitted under this Agreement, the Receiving Party shall promptly notify the Disclosing Party of such disclosure and take all steps necessary to return any disclosed information to the Disclosing Party and to prevent further improper disclosures.
- Equitable Relief. Each party acknowledges that any use or disclosure of the other party’s Confidential Information or Trade Secrets in a manner inconsistent with the provisions of this Agreement will cause the other party irreparable damage for which remedies other than injunctive relief will be inadequate, and each party agrees that the other party shall be entitled to injunctive or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement.
- Continuing Obligation. After expiration or termination of this Agreement, each party shall continue to comply with this Confidentiality obligation indefinitely with respect to the other party’s Trade Secret information, and for at least five (5) years with respect to the other party’s Confidential Information.
SECTION 12 CONTROLLED DATA AND EXPORT CONTROL
- Controlled Data. Both parties acknowledge that Convergent Science, Inc., may have employees who are foreign nationals who may be working with the technical data exchanged pursuant to this Agreement. Both parties also recognize that some of the technical data exchanged pursuant to this Agreement may be deemed by the United States government to be subject to export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), or other export control laws, as applicable. Such data will be referred to herein as “Controlled Data.” If any Controlled Data is exchanged or contained in any User Data, the disclosing party shall notify the receiving party of the U.S. Munitions List Category, the Export Control Classification Number, or other classification in writing before disclosure. All Controlled Data will be clearly labeled as such by the disclosing party at the time of disclosure (including any appropriate marking that the data is subject to the ITAR or the EAR). If not labelled accordingly, the receiving party may conclude that the information is not Controlled Data. Both parties shall have the right to decline or limit the receipt of Controlled Data.
- Export Controls. Customer acknowledges and agrees that the Service, the Horizon Platform, and the Software and related technology and services may be subject to export laws, regulations, restrictions, and controls that prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of CSI to provide access to the Service, the Horizon Platform, and the Software, as well as any technical assistance, are subject in all respects to such laws, regulations, restrictions, and controls, and shall govern the access and use of the Service, the Horizon Platform, and the Software. Customer acknowledges, agrees, certifies, represents, and warrants that (a) neither the Service, the Horizon Platform, the Software nor any component thereof is being or will be acquired, shipped, transferred, exported, or re-exported, directly or indirectly, into any country prohibited by export restrictions and controls; (b) Customer is not located in any country to which the United States has embargoed goods or has otherwise applied any economic sanctions; (c) Customer is not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in other jurisdictions; and (d) Customer will not use the Service, the Horizon Platform, or the Software for any use that is prohibited under any export laws, regulations, restrictions, or controls. Customer shall take all actions that may be reasonably necessary to assure that no end user contravenes such laws, regulations, restrictions, and controls. Without limiting the generality of the foregoing obligation, Customer hereby expressly agrees that, without the prior written authorization of CSI and the United States Government, Customer will not, and will cause Customer’s employees, contractors, representatives, and agents to agree not to, export, re-export, divert, or transfer the Service, the Horizon Platform, or the Software or any component thereof to any destination, company, or person prohibited by the Export Controls Act of 2018, as amended, any successor legislation, the Export Administration Regulations issued by the Department of Commerce - Bureau of Industry and Security (BIS), or the International Traffic in Arms Regulations, or prohibited by the U.S. State Department-Directorate of Defense Trade Controls, the International Trade Administration, Office of Export Licensing, U.S. Department of Treasury - Office of Foreign Assets Control, or other applicable export control laws, regulations, or agencies. Customer shall indemnify, defend, and hold CSI harmless against all claims based on Customer exporting the Service, the Horizon Platform, or the Software.
SECTION 13 MISCELLANEOUS
- Governing Law, Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state of Wisconsin, without reference to conflict of law principles. The parties agree that the provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Venue and jurisdiction for any federal or state court litigation and any alternative dispute resolution, including mediation, shall be Dane County, Wisconsin, USA.
- Enforcement. In the event of any litigation between the parties arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees at the trial and appellate levels.
- Waiver of Right to Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- Force Majeure. Neither party shall be liable for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by a Force Majeure event. The delayed party must notify the other party promptly upon the occurrence of any such event and inform the other party of its plans to resume performance.
- Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes any prior agreement, understanding, and communication between the parties, whether written or oral, with respect to such subject matter. This Agreement can be amended only in writing signed by the parties.
- Transfer and Assignment. Except as otherwise provided in this Agreement, Customer may not assign or transfer the Service, the Horizon Platform, or the Software or this Agreement to a third-party without the prior written consent of CSI, which may be withheld at the sole discretion of CSI. Any attempt to do so without such consent will be null and void. CSI is permitted to assign or otherwise transfer this Agreement to any third-party without Customer’s consent. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective representatives, successors, and permitted assigns.
- Severability; No Waiver. In the event that any term or condition of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such determination shall have no effect on the other terms and conditions, which shall continue to be binding upon the parties hereto. Lack of enforcement of any term or condition in this Agreement shall not be construed as a waiver of any rights conferred by such term or condition.
- Relationship. No joint venture, partnership, employment, or agency relationship exists between Customer and CSI as a result of this Agreement or use of or access to the Service, the Horizon Platform, or the Software. Each party shall have sole responsibility for payment to its employees and its subcontractors, including all tax payments and reporting obligations and shall indemnify the other party for all such expenses and obligations.
- Consultant’s Nondisclosure Agreements. Before Customer or any of its Users is permitted to hire a third-party consultant to render assistance to Customer or a User in the setup of the Service, the Horizon Platform, or the Software or in the operations of the Service, the Horizon Platform, or the Software, Customer or, if applicable, User, must first provide written notice to CSI providing the name and address of all such consultants, and all such consultants must first sign a non-disclosure agreement with CSI to protect CSI’s Confidential Information. CSI reserves the right to reasonably refuse to allow a specific third-party consultant to render assistance to Customer or any of its Users or obtain access to the Service, the Horizon Platform, or the Software
- Survival Clause. All duties and responsibilities of any party, that, either expressly or by their nature, extend into the future, shall extend beyond and survive the end of the contract Term and termination of this Agreement, including Sections 1, 2.2, 2.3, 2.8, 2.10, 4.5, and 7—13 of this Agreement. In addition, the expiration or earlier termination of this Agreement shall not relieve either party of obligations incurred prior to the termination date.
- Notices Clause. All notices or communications required or permitted as a part of the Agreement shall be in writing (unless another verifiable medium is expressly authorized) addressed to the recipient’s last known address and shall be deemed delivered the earlier of: the date actually received; or upon receipt by sender of a certified mail return receipt signed by an employee or agent of the receiving party.
- Alternative Dispute Resolution. Except for actions to collect fees for the Service, the Horizon Platform, or the Software or seeking injunctive relief to protect intellectual property rights or Confidential Information, in the event of a dispute between the parties arising under or in connection with this Agreement, both parties agree to first use their best efforts to settle the dispute through negotiation. Each party shall make available an officer or representative, who shall have authority to bind his or her respective party, to consult and negotiate with each other in good faith to resolve the dispute. If the dispute cannot be settled through such negotiation within thirty (30) days, then, upon notice of either party to the other party, the parties shall engage in mediation for the outstanding issues prior to any lawsuit being filed by either party. Mediation shall take place in person in Dane County, Wisconsin, USA.
- Binding Agreement. This is binding agreement for the Service, the Horizon Platform, and the Software identified in this Agreement and is effective on the Effective Date. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.