These Shareablee, Inc. Terms and Conditions (the “Agreement”) are entered into as of the date (“Effective Date”) set forth on the Statement of Work (the “SOW”) between the you, the customer referenced in the SOW (“Customer”) and us, Shareablee, Inc., a Delaware corporation (“Shareablee”). (Shareablee and Customer shall each be referred to individually as a “Party” and collectively as the “Parties”).
License Grant. In consideration of the Fees (defined below) to be paid by Customer as set forth in the SOW, and in accordance with these Terms and Conditions, Shareablee hereby grants to Customer and its employees a revocable, non-transferable, non-sublicensable, limited, non-exclusive right and license to use and access the web-based data analytics and reporting service operated by Shareablee, which provides, on a non-exclusive basis, direct or indirect (via third party systems) access to information and related services by a variety of means, including but not limited to online access via Shareablee’s website (the “Shareablee Service”). The Shareablee Service is subject to change at Shareablee’s sole discretion. The Shareablee Service, and any printed or downloaded copies of the Shareablee Service or reports created therefrom, are to be used for internal purposes only and may not be sold, distributed or transferred to a third party, except as may be otherwise agreed in an SOW. Materials printed or saved from the Shareablee Service, and access to the Shareablee Service, may not, under any circumstances, be sold in any form. In the event that information received from the Shareablee Service or reports is incorporated into presentation materials of Customer, Customer shall acknowledge Shareablee as the source of such information. Shareablee shall provide Customer with routine maintenance, periodic upgrades, and enhancements of the Shareablee Services when such updates and upgrades become generally commercially available; provided, however, that Shareablee shall not be obligated to provide such updates and upgrades to Customer if Customer is not up-to-date on the payment of all Fees owed hereunder.
Peripheral Reports. Customer may request, and Shareablee may elect in its sole and absolute discretion to provide, peripheral reports for an additional fee (the “Reports”), as further set forth in one or more written statements of work (each, an “SOW”) executed between the Parties. Customer shall be the sole and exclusive owner of any Reports created for Customer hereunder; provided, however, that Shareablee retains all right, title, and interest in and to the Shareablee Intellectual Property as defined below.
2. Customer Responsibilities
Customer is solely responsible for all activity occurring under its accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Shareablee Service. Customer shall: (i) notify Shareablee promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Shareablee promptly and use reasonable efforts to stop any use, copying, or distribution of the Shareablee Service that is known or suspected by Customer or its users; and (iii) only use the Shareablee Service for its intended purpose. Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute, disclose, or otherwise commercially exploit or make available to any third party in any manner the Shareablee Service in any way; (b) modify or make derivative works based upon the Shareablee Service; (c) create Internet “links” to the Shareablee Service or “frame” or “mirror” the Shareablee Service on any other server or wireless or Internet-based device; (d) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Shareablee Service , or (except as expressly permitted herein) access the Shareablee Service, or copy any ideas, features, functions or graphics of the Shareablee Service; (e) modify, interfere with or disrupt the integrity or performance of the Shareablee Service (including the data contained therein); or (f) attempt to gain or permit unauthorized access to the Shareablee Service or its related systems or networks.
All works of authorship, inventions, software, technology, copyrights, trade secrets, and all other intellectual property and proprietary information (collectively, the “Intellectual Property”) owned by Shareablee as of the date of this Agreement (the “Shareablee Intellectual Property”) is solely the property of Shareablee. All Intellectual Property developed by Shareablee during the Term of this Agreement, including as the same may be embodied in any data, reports or other deliverables under this Agreement or any SOW, will solely be owned by Shareablee, except as otherwise expressly set forth herein or agreed to by the Parties in writing. Except as expressly set forth in writing, neither Party shall acquire any interest in and to the Intellectual Property of the other Party. Nothing contained herein or in any SOW shall restrict Shareablee from the use of any ideas, concepts, practices, learning or know-how retained in the unaided memory of Shareablee personnel after performing any services for Customer under this Agreement or any SOW. In addition, nothing contained herein or in any SOW shall restrict or in any regard limit Shareablee from providing the Shareablee Service or any other service of any kind to any other person or entity.
Unless otherwise expressly agreed to in writing, all suggestions, solutions, improvements, corrections and other contributions provided by Customer to Shareablee regarding the Shareablee Services or other Sharablee materials provided to Customer, shall be owned by Shareablee, and Customer hereby agrees to assign any and all such rights to Shareablee, and Customer shall execute any documents necessary to make such assignment effective. Subject to Section 11, nothing in this Agreement shall preclude Shareablee from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Shareablee in the performance of the Shareablee Services hereunder.
Customer shall pay to Shareablee the fees for the Shareablee Services set forth in the applicable SOW (“Fees”). Shareablee will invoice Customer for the Fees annually in advance and all invoices will be due within thirty (30) days after the date set forth on the applicable invoice. Customer accepts responsibility for, and shall pay, all applicable taxes, duties, and tariffs associated with its receipt of the Shareablee Service, except for those taxes based on Shareablee’s income. A late fee of one and one half percent (1.5%) per month, or the maximum amount permitted under applicable law, will be added to any outstanding balance owed by Customer more than thirty (90) days after the date of the relevant invoice. Shareablee reserves the right to suspend all or part of the Shareablee Service, or terminate this Agreement immediately upon notice, in the event that Customer does not pay an invoice when due or Shareablee determines, in its sole and absolute discretion, that the Customer is unable to make timely payment. Customer shall be responsible for Shareablee's reasonable costs of collection (including, but not limited to, Shareablee's reasonable legal fees) incurred in the event Customer fails to pay the Fees in a timely manner.
5. Term; Termination
This Agreement shall commence on the Effective Date and continue in effect for a period of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive terms of one year (each, a “Renewal Term”) absent notice by either Party of its intention not to renew this Agreement at least ninety (90) days prior to expiration of the then-current term or termination of this Agreement. The Initial Term and any Renewal Term will be collectively referred to herein as the “Term.” Either Party may terminate this Agreement immediately upon notice on the occurrence of any of the following events: (i) any material breach by the other Party which has not been cured within thirty (30) days of written notice given to the breaching Party by the non-breaching Party; or (ii) if the other Party ceases to do business in the ordinary course or becomes insolvent. Shareablee may terminate this Agreement immediately upon notice if Customer fails to pay an invoice when due in accordance with Section 4.
6. Representations and Warranties; Covenants
As of the Effective Date and at all times thereafter, each of the Parties represent and warrant that: (a) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (b) the execution and delivery of this Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court having jurisdiction over such Party; and (c) it is in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, and all binding orders of any court, agency or other governmental body with appropriate authority and have obtained all applicable permits and licenses required of such Party in connection with their obligations under this Agreement.
During the Term of the Agreement, Shareablee covenants to Customer that (i) Shareablee will provide the Shareablee Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Shareablee Service shall perform materially in accordance with the documentation found, and updated, from time to time, at http://www.Shareablee.com; and (iii) Shareablee will use commercially reasonable efforts to prevent the Shareablee Service from containing any viruses or malicious code.
During the Term of this Agreement, Customer covenants to Shareablee that: (i) Customer shall implement reasonable procedures to restrict access to the Shareablee Service to its employees; (ii) Customer shall not knowingly permit anyone other than its employees to access the Shareablee Service; and (iii) Customer has entered into this Agreement to obtain access to the Shareablee Service for its own account and use and not on behalf of any other person or entity.7. Indemnification
Subject to the terms of this Agreement, Shareablee shall defend, indemnify and hold Customer harmless against any expense, liability, loss, damage or costs (including reasonable attorneys’ fees), each to the extent payable to a third party, incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Shareablee Service when used in accordance with this Agreement (i) infringes such third party’s intellectual property rights (each, an “Infringement Claim”) or (ii) violates such third party’s privacy rights under applicable law. Notwithstanding the foregoing, if Shareablee reasonably believes that Customer’s use of any portion of the Shareablee Service is likely to be the subject of any Infringement Claims then Shareablee may, at its expense and in its sole discretion: (a) procure for Customer the right to continue using the Shareablee Service; (b) replace the Shareablee Services with other services of equivalent functions and efficiency that is not subject to any Infringement Claims; or (c) modify the Shareablee Service so that there is no longer any infringement, provided that such modification does not adversely affect material functionality of the Shareablee Service. If, in Shareablee’s opinion, (a), (b), and (c) above are infeasible or commercially impracticable, Shareablee may, in its reasonable discretion, terminate this Agreement and refund to Customer a pro rata portion the Fees paid by Customer for the period of time Customer paid for access to the Shareablee Service, but was not able to access the Shareablee Service. The foregoing indemnification obligation of Shareablee shall not apply: (x) if the Shareablee Service is modified by any party other than Shareablee; (y) the Shareablee Service is combined with other non-Shareablee products, applications, or processes not authorized by Shareablee; or (z) to any unauthorized use of the Shareablee Services. THIS SECTION, AS LIMITED BY SECTION 9,SETS FORTH SHAREABLEE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR VIOLATION OF PRIVACY RIGHTS.
Customer shall defend, indemnify and hold Shareablee harmless against any expense, liability, loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Shareablee by a third party arising from or relating to: (i) Customer’s use of the Shareablee Services in violation of this Agreement; or (ii) a breach or alleged breach by Customer of the Agreement. Customer shall pay all judgments, awards, settlements, liabilities, damages, liens and claims, and all related costs, expenses and other charges suffered or incurred as a result of or in connection with a Claim, including reasonable attorneys' fees and disbursements, costs of investigation, litigation, settlement and judgment, and any taxes, interest, penalties and fines with respect to any of the foregoing incurred by Shareablee with respect to any Claim subject to indemnification hereunder.
If any third party shall notify Shareablee or Customer (the party so notified, the “Indemnified Party”) with respect to any matter which may give rise to a claim for indemnification against the other party (the “Indemnifying Party”) under this Section 7, then the Indemnified Party shall promptly notify the Indemnifying Party thereof in writing; provided, however, that failure to notify any the Indemnifying Party shall not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party will reasonably cooperate with Indemnifying Party with the defense and/or settlement thereof, which defense and/or settlement shall be controlled by Indemnifying Party, provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts, Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Indemnified Party’s written consent (not to be unreasonably withheld or delayed) and Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
8. Disclaimer of Warranties
NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN SHAREABLEE AND CUSTOMER ABOUT OR IN CONNECTION WITH THE SHAREABLEE SERVICE, THE COVENANTS AND WARRANTIES GRANTED IN SECTION 6.2 OF THIS AGREEMENT IS IN LIEU OF ALL OTHER COVENANTS AND WARRANTIES AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SHAREABLEE NOR ANY OF ITS EMPLOYEES, AFFILIATES, OR AGENTS MAKE ANY COVENANTS OR WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, COMPLETELY SECURE, ERROR-FREE, NON-INTERRUPTION, NON-INTERFERENCE OR NON-INFRINGEMENT. CUSTOMER HEREBY ACKNOWLEDGES THAT THE SHAREABLEE SERVICE MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, OR TECHNICAL FAILURE OF THE SHAREABLEE SERVICE OR TELECOMMUNICATIONS INFRASTRUCTURE. THEREFORE SHAREABLEE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING USE AND/OR, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE SHAREABLEE SERVICE. CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF PROBLEMS AND ANY OTHER DIRECT OR INDIRECT DAMAGES OR COSTS CAUSED BY UNAUTHORIZED NETWORK OR COMPUTER ACCESS OR VIRUSES, WORMS OR OTHER HARMFUL OR UNAUTHORIZED SOFTWARE OR HARDWARE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SHAREABLEE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER IS SOLELY RESPONSIBLE FOR THE OPERATION, PERFORMANCE, ACCESS AND SECURITY OF NETWORKS (INCLUDING WAN, LAN AND WIRELESS) AND COMPUTERS OVER AND ON WHICH CUSTOMER WILL RECEIVE OR ACCESS THE SHAREABLEE SERVICE.
9. Limitation of Liability
EXCLUDING ANY INDEMNIFICATION CLAIM OR CLAIM FOR BREACH OF SECTION 11 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SHAREABLEE OR CUSTOMER BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING LOST PROFITS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR THE POSSIBILITY OF SUCH DAMAGES IS FORESEEABLE. Customer’s total aggregate liability to Shareablee under this Agreement and Shareablee’s total aggregate liability to Customer under this Agreement, in each case, whether in contract, tort (including negligence or strict liability) or otherwise, shall not exceed the Fees paid by Customer to Shareablee in the twelve (12) months prior to the date of the claim.
10. Local Laws and Export Control
Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Shareablee Service. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Shareablee Service in violation of any U.S. export embargo, prohibition or restriction. Confidential Information. Provision of the Shareablee Service may require Shareablee to provide Customer with Shareablee’s
11. Confidential Information
Further, Shareablee may have access to or be given Customer’s Confidential Information. As used in this Agreement, the term “Confidential Information” means any information specifically designated as proprietary and/or confidential, or which should, by its nature, reasonably be understood to be proprietary and/or confidential, received by a Party (“Receiving Party”) from the other Party (“Disclosing Party”), together with all copies and derivatives thereof. For avoidance of doubt, the terms of this Agreement and any SOW, including pricing, shall be deemed to be Confidential Information under this Agreement. Receiving Party acknowledges that Confidential Information is confidential and proprietary to the Disclosing Party, and is intended for use by Receiving Party solely for the purpose of performing Receiving Party’s obligations under this Agreement. Receiving Party agrees to keep the Confidential Information in a secure place with restricted access. Receiving Party further agrees to maintain it as confidential and use the same degree of care to protect the Confidential Information as Receiving Party uses to protect its own Confidential Information of a similar nature, provided it is not less than reasonable care. The Receiving Party agrees to restrict access to the Confidential Information to its duly authorized officers, employees, directors, attorneys, accountants, contractors, and other representatives or agents (collectively, “Representatives”) who need to know such information to assist Receiving Party with its performance under this Agreement. Receiving Party shall be responsible for any action or inaction of its Representatives, which, if done by Receiving Party would be a breach of this Agreement. Unless otherwise provided in this Agreement, all Confidential Information delivered by Disclosing Party to Receiving Party pursuant to this Agreement shall be and remain the property of Disclosing Party, and all Confidential Information, and any copies or derivatives thereof, shall be promptly returned to the Disclosing Party, at Disclosing Party’s option, destroyed, upon Disclosing Party’s written request at any time. Notwithstanding the foregoing, a Receiving Party shall be entitled to keep one (1) copy of the Disclosing Party's Confidential Information solely for regulatory, compliance, legal and/or archival purposes and not for any commercial purpose, and subject to the terms of this Section 11. Except as expressly provided by this Agreement, or as otherwise agreed by the Parties in writing, Receiving Party shall not transfer any Confidential Information to a third party. The term “Confidential Information” shall not include information that (i) becomes available to the public other than through a disclosure by the Receiving Party in violation of this Agreement, (ii) is demonstrably lawfully known to the Receiving Party prior to its disclosure by the Disclosing Party, (iii) is developed independently by the Receiving Party without using the Confidential Information or otherwise violating its obligations hereunder, or (iv) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party. In the event that the Receiving Party is ordered, by law, rule, regulation, governmental agency or court of competent jurisdiction, to disclose Confidential Information of the Disclosing Party, or the existence or terms of this Agreement, the Receiving Party will, to the extent practicable given the circumstances and permitted by law, provide prompt notice of such order to the Disclosing Party and cooperate with and assist the Disclosing Party, at the Disclosing Party’s cost and expense, so that the Disclosing Party may limit the scope of any disclosure.
All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be in writing, and shall be deemed duly given: (i) on the date delivered if personally delivered; (ii) on the date sent by telecopier with automatic confirmation by the transmitting machine showing the proper number of pages were transmitted without error; or (iii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth on the first page of this Agreement; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder.
This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes any prior or contemporaneous understandings, agreements or representations. In the event that any part of this Agreement shall be held to beinvalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement and the remaining portions of this Agreement shall be valid and enforceable. No supplement, modification, amendment or waiver of this Agreement shall be binding unless executed in writing by both Parties. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Party which may be granted or withheld in such Party’s sole and absolute discretion; provided, however, that Shareablee shall have the right, without seeking Customer’s prior written approval, to assign this Agreement to any affiliate or in connection with a reorganization, merger, consolidation or sale of all or substantially all of Shareablee’s assets. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to that state’s conflict of law analysis. All legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby shall be adjudicated in the United States District Court for the Southern District of New York or any state court of competent jurisdiction sitting in New York County, New York. The prevailing Party in any action to enforce the provisions of this Agreement shall receive an award of any and all costs and expenses incurred in such action, including, but not limited to, reasonable attorneys’ fees. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. A signature on a copy of this Agreement received by either Party by facsimile, PDF or email is binding upon the other Party as an original. Sections 3, 4, 6, 7, 8, 9, 11 and 13shall survive the termination or expiration of this Agreement. This Agreement will be binding upon and inure to the benefit of the Parties.