ImmyBot Terms Of Use
This Immy.Bot Terms of Use agreement (the “Agreement”) is by and between IMMYBOT, LLC, a Louisiana limited liability company with offices located at 10226 Jefferson Hwy. #100, Baton Rouge, Louisiana 70809 ("Provider") and you, the entity whose name and contact information were provided as part of the service sign-up ("Customer") and is effective as of the date of service sign-up. Each of Provider and Customer are a “Party” or a “party” and, collectively, the “Parties” or “parties”.
1. Services By Limited License, Fees Due and Termination Rights
1.1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ full and complete observation, performance and satisfaction of, and compliance with, all of the terms and conditions of this Agreement, Provider, subject to the restrictions, limitations and other provisions of Section 2, hereby grants Customer a revocable-at-any-time, non-exclusive, non-transferable, personal license to access and use the Services (as well as the Documentation, but solely, as to the Documentation, to support or assist in this licensed access or use of the Services) during the Term, solely for use by Authorized Users and solely in strict accordance with the Licensed Purpose.
1.2. Licensed Purpose. The “Licensed Purpose” is limited to Customer’s internal use for Provisioning and managing End User Computers; provided that the Licensed Purpose does not include uses or circumstances expressly excluded by the provisions of Section 1.2.1.
1.2.1. The Licensed Purpose hereby expressly excludes each and all of the following:
(a) offering use of the Services to others and other external uses, including, without limitation, acting as a reseller or other intermediary;
(b)Provisioning any End User Computer owned, leased or used by a federal, state or local governmental entity; or,
(c) Provisioning any End User Computer used in the operation, control or monitoring of any machinery, equipment or apparatus used in or for any of the following (each a “Prohibited End User Computer”):
(1) industrial plants (such as, but not limited to, the following: nuclear power plants; chemical or petro-chemical plants; paper mills or other mills; or, power plants);
(2) processes or systems involving the treatment of, or the storage or transport of, environmental or otherwise hazardous waste or materials (such as, but not limited to, munitions or dangerous contagions) or other contaminated or dangerous materials;
(3) hospitals, nursing, assisted-living or other healthcare facilities or operations where such machinery, equipment or apparatus are used in delivering or otherwise providing treatment, medicine, surgical services, life-support or other healthcare services to individuals or animals;
(4) any safety response systems or other safety-critical applications;
(4) any application where the failure, degradation, compromise, pause, resetting, interruption of, or change within, such End User Computer: (i) could have, or could contribute to, the personal injury, bodily injury, death or other detrimental impact on the life, safety or health of any individual; or (ii) could have, or could contribute to, severe or substantial physical or property damage, life-safety risks, unsafe working conditions or unsafe operating conditions.
(d) all activities prohibited by Section 3.11.
1.3. Services and System Control. Except as otherwise clearly, unambiguously and expressly provided in this Agreement, as solely between the two Parties (and so without the Parties making any representations, promises or assurances to each other in this Section 1.3 as to the control, rights or interests of any third parties), the Parties agree, subject always to the provisions of Section 1.4, that:
1.3.1. except to the extent that a Customer User directs or otherwise uses the Services to Provision, or to attempt to Provision, any End User Computer, Provider has and will retain sole control (and so Customer has no right to have any control) over the operation, provision, delivery, maintenance, and management of the Services;
1.3.2.except to the extent that a Customer User directs or otherwise uses the Services to Provision, or to attempt to Provision, any End User Computer or requests that Provider access (whether for troubleshooting, diagnostics, support, maintenance or otherwise) any End User Computer or other Customer Accessible Systems, Customer has and will retain sole control (and so Provider has no right to have any control) over the operation, maintenance, and management of, and all access to and use of, the Customer Accessible Systems; and,
1.3.3.except to the extent that a Customer User, in accordance with the limited license granted under Section 1.1, directs or otherwise uses the Services to Provision, or to attempt to Provision, any End User Computer or requests that Provider (and Provider accepts such request to) access (whether for troubleshooting, diagnostics, support, maintenance or otherwise) any End User Computer or other Customer Accessible Systems, Provider has no obligation, responsibility or other undertaking whatsoever to operate, maintain, or manage any of the Customer Accessible Systems.
1.4. Responsibility For Customer Users. Notwithstanding any provisions of sections 1.3.1, 1.3.2 or 1.3.3, the Parties agree that:
1.4.1.Customer has, and hereby takes and will retain, sole responsibility and liability for all access to or use of the Provider Materials by Customer and each Customer User including any: (i) information, instructions, or materials (including, without limitation, Digital Assets) provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services (including, without limitation, Digital Assets) or Provider Materials; and (iii) conclusions, decisions, or actions based on such use or results.
1.4.2.by a Customer User directing or using the Services to Provision, or to attempt to Provision, any End User Computer or by a Customer User requesting that Provider access (whether for troubleshooting, diagnostics, support, maintenance or otherwise) any End User Computer or other Customer Accessible Systems, Customer hereby irrevocably and unconditionally takes and assumes full responsibility, risk and liability for any and all Losses (whether of Customer, of Customer’s customers, of Customer Users, or other third parties) or Actions which are, in whole or in part, caused by, based on, arising out of or related to any actual or attempted access to or use of an End User Computer, the successful or unsuccessful Provisioning thereof or to any actual or attempted access to or use of any Customer Accessible Systems; and,
1.4.3.for the avoidance of doubt, nothing in Section 1.3.1 above is, or shall be construed whatsoever as, Provider: (a) granting any right or license to Customer beyond the limited license set forth in Section 1.1; or, (b) limiting, prejudicing or waiving any of Provider’s rights to restrict or limit access to or use of the Services to conform to the limited license granted under Section 1.1.
1.5. Fees.
1.5.1. Customer, in advance, shall timely pay the fees set forth in Provider’s fee schedule. All fees paid are non-refundable (except in the event of an Early Termination in which case a refund is available per the terms and conditions of Section 1.5.2). In addition to, and not in limitation of, Provider’s other rights and remedies, Customer shall pay Provider interest on any amounts due at the rate of seven percent per annum plus a late fee of one hundred ($100.00) US Dollars on each monthly fee paid late.
1.5.2 As to any Early Termination and subject to Customer signing a full release (in form and substance as provided by Provider) in favor of Customer and subject to any offset, deduction or withholding by Provider for any claims, or potential claims, of Provider against Customer, Provider shall, within sixty (60) days of such Early Termination, refund a pro rata amount of the last payment received from Customer based on the following ratio: days after the Early Termination which were included in said last payment received divided by the total number of days which were included in said last payment received.
1.5.3. Customer shall, at all times during the Term, maintain a valid and authorized credit card on file with Provider in Customer’s account with Provider. Customer hereby authorizes Provider at all times during the Term to charge said credit card monthly per Provider’s fee schedule and at such other times that Customer incurs any fees due to Provider. Customer immediately materially breaches this Agreement where Provider cannot charge for all fees due on the credit card on file with Provider.
1.6 Term. The term of the Agreement begins on the Effective Date and continues until: (a) either Party gives the other Party thirty (30) days notice of voluntary termination (“Regular Termination”); (b) Provider gives Customer three (3) days notice of voluntary termination (“Provider Early Termination”); or, (c) Customer, if allowed pursuant to Section 4.3, gives Provider five (5) days notice of termination (“Customer Early Termination” and, collectively with Provider Early Termination, an ”Early Termination”); provided, that Customer agrees that none of (a), (b) or (c) does in any way whatsoever limit or restrict Provider’s rights under Sections 1.7 or 2.5. The period determined pursuant to whichever of (a), (b) or (c) applies is the “Term”.
1.7. Termination For Breach.
1.7.1 In addition to, and not in limitation of, Provider’s other rights and remedies, Provider may terminate this Agreement upon two (2) days notice to Customer if Customer has failed to pay any amounts due to Provider or if Customer fails in any way whatsoever to comply and satisfy Customer’s obligations under Section 1.5.3.
1.7.2 In addition to, and not in limitation of, Provider’s other rights and remedies, Provider may terminate this Agreement upon the tenth (10th) day after notice to Customer of Customer’s breach, or threatened breach, of this Agreement where Customer has failed to cure said breach prior to said tenth (10th) day.
1.7.3 To the extent that Provider has breached this Agreement, Customer shall have no right to terminate this Agreement due to said breach unless Customer first provides Provider with notice of said breach and Provider fails, within sixty (60) days of said notice to cure said breach.
2. Use Restrictions; Service Usage and Data Storage.
2.1. Use Restrictions. Subject to Section 2.2, Customer shall not, and shall not permit or allow (whether by action or inaction) any Customer User to, Access or use the Services or other Provider Materials except as clearly, unambiguously and expressly licensed by Section 1.1 of this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, but always subject to Section 2.2, Customer shall not (and Customer shall not permit or allow (whether by action or inaction) any Customer User to do any of the following (and, for the avoidance of doubt, Provider does not grant Customer any right or license to do any of, and the license grant under Section 1.1 is hereby conditioned upon Customer and Customer Users not doing any of, the following), except as this Agreement otherwise clearly, unambiguously and expressly permits:
(a) copy, modify, adapt, edit, change or create derivative works or improvements of the Services or other Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or other Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or other Provider Materials, in whole or in part;
(d) bypass, circumvent or breach any security, privacy, encryption or license management device (whether hardware, software or otherwise) or other protection used by, or otherwise deployed to protect, the Services or other Provider Materials or Provider Systems;
(e) access or use the Services or other Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(f) input, upload, download, deliver, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code;
(g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, other Provider Materials or Provider’s delivery or supply of any goods, services or products to any third party, in whole or in part;
(h) remove, delete, alter, mutilate or obscure any trademarks, Specifications, Documentation, terms of use, end user license agreements, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices or legends on or from any Services or other Provider Materials, including any copy thereof;
(i) access or use the Services, Provider Systems or other Provider Materials in any manner or for any purpose: (1) that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer); (2) that is, or furthers, any criminal, fraudulent, deceitful, misleading or illegal purpose, conduct or activity; (3) that violates any applicable Law; or (4) that exceeds the scope of authority granted to Customer by the owner, lessee or operator of any End User Computer, by the End User, by the employer of the End User or by any other Person to whom the End User is under a contract or engagement to perform or deliver any goods, services or product;
(j) access or use the Services or other Provider Materials: (1) for purposes of competitive analysis of the Services or other Provider Materials; (2) for purposes of the development, provision, or use of a competing software service or product; or, (3) for any other purpose that is to the Provider’s detriment or commercial disadvantage;
(k) access or use the Services or other Provider Materials in, or in association with, the design, development, construction, installation, implementation, maintenance, or operation of any of the following: (1) any hazardous environments, systems, or applications; (2) any safety response systems or other safety-critical applications; or, (3) any other use or application whatsoever in which the use, degradation, compromise or failure of the Services or Provider Systems could lead to, or contribute to, personal injury, bodily injury, death, life-safety risks, unsafe working conditions, unsafe operating conditions or severe or substantial physical or property damage;
(l) use or access the Resultant Data or the System User Data;
(m) otherwise access or use the Services or other Provider Materials beyond the scope of the license grant of Section 1.1; or, (n) facilitate or support other Persons to do any one or more of the above (a) through (m) inclusive.
2.2. Copyright Protection Reservation. To the extent that Customer’s promises herein (or that Provider’s demand for performance of, or other enforcement of, any such promise by Customer herein) to not take any action (whether, for example, but not limited to, copying, using, preparing derivative works or other actions), or to not permit or allow any action (again, whether, for example, but not limited to, copying, using, preparing derivative works or other actions), with respect to any of the Services or other Provider Materials might cause Provider to lose or risk any (or to otherwise limit or prejudice) Provider’s copyright protection or invalidate or suspend Provider’s copyright protection, Provider may elect, by notice to Customer, to deem such promises to be only conditions, which must be satisfied by Customer, for the granting of the license under Section 1.1 as to and under any copyright of Provider but otherwise such promises shall remain and continue as to any trade secrets or other (non-copyright) Intellectual Property Rights.
2.3. Changes. Provider reserves the right, in its sole discretion, to, at any time, one or more times, make any changes (and without notice to or the consent of Customer) to the Services, Provider Systems or other Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the generality of the forgoing, while Provider may, from time to time, give advance notice to Customer, or post notice on Provider’s website, of any changes to the Services, to Provider Systems or to other Provider Materials, Customer nevertheless agrees that Customer has no right whatsoever to receive, and has no right whatsoever to expect or rely on Customer giving or posting, any notice of any such changes.
2.4. Subcontractors. Provider may from time to time, one or more times (and without any notice to, or the consent of, Customer) and in Provider’s sole discretion, engage one or more Subcontractors.
2.5. Suspension or Termination of Services. Customer acknowledges and agrees that any part or all of the Services and other Provider Materials may be removed, disabled, or withdrawn from service at any time. Thus, for the avoidance of doubt, Provider may, at any time, directly or indirectly, and by use of a Provider Disabling Device or any other means, suspend, limit, pause, halt, stop, revoke, cancel, terminate, or otherwise prevent, enjoin, disable or deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, Provider Systems or other Provider Materials (including, without limitation, maintaining, at Provider’s sole discretion, some access but limiting or otherwise restricting use of all or any part of the Services, Provider Systems or other Provider Materials), all without incurring or risking any obligation or liability whatsoever for any foreseeable or unforeseeable resulting Losses or Actions.
This Section 2.5 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement. For the avoidance of doubt, this Section 2.5 does not obligate Provider to Customer in any way whatsoever: (1) to monitor, detect or police any conduct or activity of or by Customer or any Customer Users that would give rise to Provider having a right to suspend, limit, pause, halt, stop, revoke, cancel, terminate, or otherwise prevent, enjoin, disable or deny any Person’s access to or use of all or any part of the Services, Provider Systems or other Provider Materials; (2) to exercise said rights; or, (3) to take any action whatsoever.
2.6. No License Expansion. In addition to Provider’s rights under Section 13.11, Customer hereby irrevocably agrees that Provider’s knowledge of (or lack of action to suspend, limit, stop, halt, disable, deny, prevent, enjoin or otherwise police) any unlicensed or other unauthorized access or use by Customer, or by any one or more Customer Users, of the Services, Provider Systems or other Provider Materials, shall not in any way whatsoever be, or be interpreted as, any expansion or other change in any license granted by Provider under this Agreement or otherwise be, or be interpreted as, any license or right granted by Provider to or for Customer or any Customer Personnel.
3. Other Customer Obligations
3.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) ensure that all End User Computers are set up, maintained, and operated consistent with the Specifications; (c) provide Provider Personnel with such access to Customer Systems as is necessary for Provider to perform the Services; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
3.2. Effect of Certain Failures or Delays. Provider is not responsible or liable for any delay or failure of performance or Losses caused in whole or in part by: (a) Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”); or, (b) incompatibilities, failures, defects, bugs, Harmful Code or other errors in or associated with (such as, but not limited to, install, patch or removal software or instructions for) any Digital Asset (each a “Digital Asset Failure”).
3.3. Corrective Action and Notice. Subject always to Section 2.2, if Customer becomes aware of any actual or threatened activity listed in any one or more of subparts (a) through (n), inclusive of Section 2.1, Customer shall, and shall cause all Customer Users to, do the following: (a) immediately (if Customer continues, or intends to continue, to enjoy the license under Section 1.1) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and other Provider Materials and, after first providing Provider with a forensic copy (which, among other matters, preserves all meta-data) permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) immediately notify Provider of any such actual or threatened activity.
3.4. Authorization And Licenses From Customer's customers and Digital Asset licensors. Customer represents, warrants, and covenants to Provider: (a) that Customer owns or otherwise has and will have the necessary rights, licenses, authorizations and consents in, for and relating to the Customer Data so that, as received by Provider and Processed in substantial accordance with this Agreement, neither the Customer Data, the Processing of the Customer Data nor Provider or Subcontractors in Processing the Customer Data will thereby infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy, data, confidentiality or other rights, of any Customer User, Customer Group or any third party or violate any applicable Law; and, (b) that Customer Group, and all Customer Personnel, will only Provision Digital Assets onto, or otherwise for or to, an End User Computer if such Provisioning is allowed, authorized and licensed in writing (including, without limitation, by a then currently in force and in writing applicable license for such Digital Assets) by all third parties who have any right, title, claim or interest whatsoever in or to said Digital Assets (or any Intellectual Property Rights thereto) or said End User Computer (or any Intellectual Property Rights thereto). For the avoidance of doubt, any Persons other than Customer and Provider are “third parties” as such term is used in this Section 3.4.
3.5. Subpoena Fees. Customer shall promptly reimburse Provider for time devoted to, and out-of-pocket costs incurred in (including, without limitation, Provider’s actually incurred attorneys’ fees, expert and investigative fee and court costs), responding to any subpoena, process, investigation, audit or discovery request associated with any litigation or investigation involving any one or more of Customer, Customer Users, Customer Systems, End Users or End User Systems (collectively, the “Discovery Response Fees” with such time by Provider’s officers or employees to be charged at $200.00/hour); and, upon Provider’s receipt of any such subpoena, process, investigation, audit or discovery request, Customer shall, upon presentation of Provider’s invoice: (a) with a good faith estimate (which may contain a reasonable reserve for contingencies) of the amount of said Discovery Response Fees, pay and advance, within five (5) calendar days, said amount; and, (b) with actual fees and costs incurred by Provider, pay, within twenty (20) calendar days, said amount.
3.6. Login Credentials. Customer has and will retain sole responsibility for the security and use of Customer’s and its Authorized Users’ Access Credentials. Customer agrees to keep all Access Credentials for all Authorized Users secret and confidential, agrees to ensure that each Authorized User’s Access Credentials are and will at all times be personal to each Authorized User and agrees to ensure that there is no “tailgating” or joint use by two or more individuals of Access Credentials. Customer shall not, and Customer shall ensure that all Authorized Users do not, allow any Person other than the Authorized User associated with specific Access Credentials, to use those Access Credentials. Customer agrees that Provider is not liable for, and Customer shall indemnify and defend Provider from and against any harm or other Losses or Actions caused by, based on, arising out of or related to, the theft, misappropriation, disclosure, or unauthorized use of any Access Credentials. Customer agrees to contact Provider immediately if Customer becomes aware of or believes that any unauthorized use of Access Credentials occurred or may have occurred or if Customer wishes to deactivate any Access Credentials due to security or privacy concerns. Customer acknowledges that actual or attempted unauthorized use of or access to the Services, Provider Systems or other Provider Materials by Customer Users may result in criminal and/or civil prosecution. Customer agrees that success in, or attempts to, access or use the Services, Provider Systems or other Provider Materials by Customer Users without authorization, as well as any information obtained therefrom, may be given (but that Provider makes no promise to, or agreement with, Customer that it will be given) to law enforcement organizations or agencies in connection with any investigation or prosecution of possible criminal or other unlawful activity.
3.7. Customer Control and Responsibility. Customer has, and hereby takes and will retain, sole responsibility and liability for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Customer User in connection with the Services; (c) Customer Systems; and (d) all access to and use of the Services, Provider Systems and other Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
3.8. Access and Security. Customer represents and warrants that, at all times during the Term, it employs and shall employ all physical, administrative, and technical controls, screening, and security and privacy procedures and other safeguards necessary as well as prudent to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services, Provider Systems or other Provider Materials by, from, through or based on the Customer Systems (including, without limitation, at least two-factor authentication); and (b) control the content and use of Customer Data, including the uploading or other supplying, transmitting or delivering of Customer Data for Processing by the Services.
3.9. Waiver Of Subrogation. Customer hereby irrevocably waives all of Customer’s and its insurers, as well as all of Customer Personnel’s and their insurers, rights of, or claims to or for, subrogation under any and all insurance policies or the like of any nature or kind whatsoever. Customer shall cause its insurers, as well as Customer Personnel’s insurers, to acknowledge and accept in writing such waiver.
3.10. Prohibited End User Computers. Customer represents and warrants that Customer shall not, and shall not allow any of Customer Personnel, to Provision, or attempt to Provision, any Prohibited End User Computer (as such term is defined in Section 1.2.1(c)).
3.11 Export Controls. Customer represents and warrants that neither Customer nor any of Customer Personnel, shall do the following: use, receive or otherwise export or re-export the Provider Materials except as expressly and clearly authorized by United States law and the laws of the jurisdiction(s) in which the Provider Materials were obtained or used. In particular, but without limiting Customer’s obligations under the foregoing, Customer represents and warrant that neither Customer nor any of Customer Personnel shall (whether wholly or partially and whether alone or with others) initiate, cause, contribute to, allow, be a party to or otherwise be involved in any transactions, conduct or activities (or any series of transactions, conduct or activities) where Provider Materials are used in or for, are used to Provision or otherwise Access End User Computers in or for, are exported into or for, or re-exported into or for, any of the following: (a) any U.S. embargoed countries or (b) anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By initiating, causing or being involved (whether wholly or partially and whether alone or with others) in any Provision or in any other Access using or involving the Provider Materials, Customer represents and warrants that neither Customer nor any End User Systems are located in any such country or on any such list. Customer also agrees, represents and warrants that neither Customer nor any Customer Personnel will Access, involve or use the Provider Materials for any purposes restricted or otherwise prohibited by United States law, including, without limitation, for the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons or any weapons of mass destruction.
4. Support, Data Backup and Data Breach
4.1. Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services during periods of low utilization of the Services; and (b) give Customer at least one (1) hour prior notice of all scheduled outages of the Services; provided, that Customer’s sole and exclusive right and remedy for Provider breaching this Section 4.1 is for Customer to immediately terminate this Agreement by giving notice thereof to Provider.
4.2. Service Support. Provider will use commercially reasonable efforts to provide support to Customer during the Term; provided that, Provider has no obligation to correct, repair, patch, update or replace all or any part of the Services, Provider Systems or other Provider Materials (and, for the avoidance of doubt, even if Provider accepts or logs a ticket for an issue or problem, or begins to or signals an intention, to correct, repair, patch, update or replace all or any part of the Services, Provider Systems or other Provider Materials, Provider neither has nor then assumes any obligation whatsoever to (or even any obligation to continue or try to) correct, repair, patch, update or replace all or any part of the Services, Provider Systems or other Provider Materials; and, for the avoidance of doubt, it always remains that Provider has no obligation whatsoever to correct, repair, parch, update or replace all or any part of the Services, Provider Systems or other Provider Materials); and further provided, that Customer’s sole and exclusive right and remedy for Provider breaching this Section 4.2 is for Customer to terminate this Agreement by giving five (5) days notice thereof to Provider and receiving the pro rata refund per the provisions of Section 1.5.2.
4.3. Data Backup. The Services are not in any way whatsoever to be considered, and do not in any way whatsoever replace the need for Customer to maintain, regular data backups, redundant data archives and, as prudent for Customer’s business, other data backup. Customer promises that Customer will maintain regular data backups, redundant data archives and such other, as is prudent for Customer’s business, data backup.
DISCLAIMER: PROVIDER HAS NO OBLIGATION OR LIABILITY WHATSOEVER FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, REPAIR OR RECOVERY OF EITHER: (A) CUSTOMER DATA; OR (B) ANY DATA ON ANY END USER COMPUTER OR ON OTHER CUSTOMER ACCESSIBLE SYSTEMS.
4.4. Data Breach Procedures. In the event that Provider is required by law, court order, or other governmental authority to provide Customer (or any End User, any Customer User or any other Person who either accessed or used any Customer Accessible Systems or who had data stored or otherwise Processed on any Customer Accessible Systems (collectively, “Potentially Affected Persons”) with notice regarding a breach of or compromise in security or privacy, Customer will fully cooperate with Provider (including, without limitation, Customer providing timely and reasonable access, as requested by Provider, to Customer Accessible Systems and Customer sending, as requested by Provider, notice via e-mail to all Potentially Affected Persons. Customer agrees to maintain a list of up-to-date e-mail addresses for each End User, each Customer User and, to the extent commercially reasonable, all other Potentially Affected Persons.
5. Intellectual Property Rights and Data Rights.
5.1. Provider Materials. Customer represents, warrants and agrees: (a) that neither Customer nor any Customer Personnel will claim or assert any right, title, claim or interest in or to the Provider Materials or in or to any Intellectual Property Rights therein or thereto (except as Customer has a limited license under Section 1.1); (b) that, as between, on the one hand, Provider, and. on the other hand, Customer and Customer Personnel, the Provider Materials, as well as all Intellectual Property Rights in or to the Provider Materials, are and will remain with Provider or the Subcontractors; (c) that Customer has no right, license, or authorization with respect to any of the Provider Materials except for the limited license as expressly set forth in Section 1.1; and, (d) that all other rights, claims, title or interest in and to the Provider Materials are hereby expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of, and does hereby irrevocably assign, all right, title, and interest in and to, the Resultant Data and System User Data, including all Intellectual Property Rights in or relating to Resultant Data or System User Data.
5.2. Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 5.3.
5.3. Consent to Use Certain Data. Customer hereby irrevocably and unconditionally grants (and Customer represents that is has and enjoys, and will continue to have and enjoy, all permissions, consents and other authorizations whatsoever to grant) all such rights, consents and permissions in or relating to Customer Data, System User Data and Resultant Data as are necessary, prudent or useful to Provider, Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider’s, Subcontractors’, and the Provider Personnel’s rights and to perform Provider’s obligations hereunder.
6. Confidentiality.
6.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available, in trust and confidence, Confidential Information to the other party (as the “Receiving Party”). Subject to Sections 6.2 and 6.6, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.
6.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, but subject to the provisions of Sections 7 and 8, the Receiving Party shall take commercially reasonable steps to:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know, access or use such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6; and (iii) are bound by written confidentiality, nondisclosure and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6; and,
(c) safeguard and protect the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information of like nature and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party toward the goal of reasonably preventing further unauthorized use or disclosure.
6.4. Continued Protection. Notwithstanding any other provisions of this Agreement (except, and subject to, the provisions of Sections 7 and 8), the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
6.5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 6; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
6.6. Resultant Data and System User Data. For the avoidance of doubt and notwithstanding any other term or provision of this Agreement, the Parties agree that Resultant Data and System User Data are the Confidential Information of Provider and that none of the Resultant Data or System User Data is or shall be considered any Confidential Information of Customer.
7. DISCLAIMERS
7.1. DISCLAIMERS OF WARRANTIES. ALL SERVICES AND OTHER PROVIDER MATERIALS ARE PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE”. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR USE OR PURPOSE; TITLE; LACK OF, OR FREE FROM, LATENT, HIDDEN, REDHIBITORY, PATENT OR OTHER DEFECTS; NON-INFRINGEMENT; AND, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOVER OF ANY KIND WHATSOEVER THAT THE SERVICES OR ANY OTHER PROVIDER MATERIALS, OR ANY PRODUCTS, SERVICES OR RESULTS OF THE USE THEREOF OR ACCESS THERETO, WILL: MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
7.2. ADDITIONAL DISCLAIMERS. WITHOUT LIMITING THE GENERALITY OF THE FORGOING, HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR OTHERWISE PROMISE WHATSOEVER OF ANY KIND WHATSOEVER AS TO THE FOLLOWING (AND CUSTOMER HAS ABSOLUTELY NO RIGHT OR CLAIM WHATSOEVER TO RELY ON ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR OTHERWISE PROMISE WHATSOEVER OF ANY KIND WHATSOEVER GIVEN, MADE OR PROVIDED BY ANY PROVIDER PERSONNEL AS TO THE FOLLOWING):
7.2.1. THAT ANY OF THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS) ARE: (A) COMPLETE, TRUE, ACCURATE, CORRECT, SUITABLE, TIMELY, APPROPRIATE, RELIABLE, SECURE, PRIVATE, APPLICABLE, USEFUL, OR NONINFRINGING OR OTHERWISE FREE OF ERRORS, DEFECTS, OMISSIONS, MISTAKES OR OTHER PROBLEMS; OR, (B) IN COMPLIANCE WITH LAW;
7.2.2. THAT ACCESS TO OR USE OF THE SERVICES, PROIVDER SYSTEMS OR OTHER PROVIDER MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, PRIVATE OR ERROR FREE;
7.2.3. ABOUT OR CONCERNING THE QUALITY, ACCURACY, CORRECTNESS, COMPLETENESS, APPROPRIATENESS, APPLICABILITY, TRUTHFULNESS, SUITABILITY, RELIABILITY, PERFORMANCE, CONDITION, CAPACITY, SECURITY, PRIVACY, TIMELINESS, STALENESS, USEFULNESS, SAFETY, FUNCTION OR FEATURES OF THE SERVICES, PROIVDER SYSTEMS OR OTHER PROVIDER MATERIALS;
7.2.4. ABOUT OR CONCERNING DIGITAL ASSETS OR ANY RISKS OF, OR THE ABSENCE, LACK OR LIMITATION OF RISKS OF, DIGITAL ASSET FAILURES;
7.2.5. ABOUT OR CONCERNING THE CONFORMITY OF THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS) TO ANY STATEMENT, SPECIFICATION OR DESCRIPTION OF OR ABOUT THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS);
7.2.6. THAT THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS) ARE INTENDED TO, OR WILL, MEET, MAINTAIN, SATISFY, ACHIEVE OR COMPLY WITH CUSTOMER’S OR ANY OF CUSTOMER’S CUSTOMERS INTENDED USE OR PURPOSES;
7.2.7.THAT THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS) ARE COMPLIANT WITH, OR WILL BE COMPLIANT WITH, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (HITECH), GRAMM-LEACH-BLILEY ACT (GLB), GENERAL DATA PRIVACY REGULATION (GDPR) OR CALIFORNIA CONSUMER PRIVACY ACT (CCPA) (OR, TO BE CLEAR, ANY OTHER FEDERAL OR STATE STATUE, LAW, DIRECTIVE, REGULATION OR RULE (WHETHER OF THE UNITED STATES, ITS TERRITORIES, ITS STATES OR OF ANY OTHER COUNTRY, SOVEREIGN OR UNION WHATSOEVER) GOVERNING OR OTHERWISE ADDRESSING THE PROTECTION, SECURITY, PRIVACY, BREACH, BREACH NOTIFICATION OR OTHER MATTERS PERTAINING TO ANY FILES, RECORDS, IMAGES OR OTHER INFORMATION, DATA (INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION, PROTECTED HEALTH INFORMATION, DATA SUBJECTS OR OTHER DATA OR INFORMATION ABOUT CONSUMERS, INDIVIDUALS OR HOUSEHOLDS) OR DATABASE, OR THE ACCESS TO OR USE OF SAID FILES, RECORDS, IMAGES OR OTHER INFORMATION, DATA (INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION, PROTECTED HEALTH INFORMATION, DATA SUBJECTS OR OTHER DATA OR INFORMATION ABOUT CONSUMERS, INDIVIDUALS OR HOUSEHOLDS) OR DATABASE);
7.2.8. THAT THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS (OR THE USE OR ACCESS OF OR TO THE SERVICES, PROVIDER SYSTEMS OR OTHER PROVIDER MATERIALS) ARE OR WILL REMAIN UNCHANGED, CURRENT, TIMELY, AVAILABLE OR ACCESSIBLE; OR,
7.2.9.ABOUT OR CONCERNING (EXCEPT FOR THE LIMITED PROMISE SET FORTH IN SECTION 6.3) THE PRESERVATION, STORAGE, ARCHIVING, BACKUP, PROTECTION, PRIVACY OR SECURITY OF (OR THE AVOIDANCE OF, OR PROTECTION AGAINST, ANY LOSS OF, CORRUPTION TO, ALTERATION OF, DESTRUCTION OF, DAMAGE TO, DISCLOSURE OF, ACCESS TO OR BREACH IN SECURITY OR PRIVACY AS TO) ANY INFORMATION, DATA (INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION, PROTECTED HEALTH INFORMATION, DATA SUBJECTS OR OTHER DATA OR INFORMATION ABOUT CONSUMERS, INDIVIDUALS OR HOUSEHOLDS) OR ANY DATABASE.
8.LIMITATIONS OF LIABILITY.
8.1. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER, ITS AFFILIATES, OR PROVIDER PERSONNEL, OR ANY OF PROVIDER’S LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE OR ECONOMIC LOSS; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) ANY ONE OR MORE DIGITAL ASSET FAILURES; OR (g) CONSEQUENTIAL, INCIDENTAL, INDIRECT, DIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER PROVIDER OR ANY OTHER PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THAT ANY REMEDY (WHETHER AN AGREED UPON REMEDY OR OTHERWISE REMEDY) FAILS OF ITS ESSENTIAL PURPOSE.
8.2. WAIVER OF DATA BREACH NOTICE, OF DAMAGES AND OF REMEDIES. TO THE EXTENT PERMITTED BY LAW, CUSTOMER DOES HEREBY KNOWINGLY AND WILLINGLY WAIVE (AND FORGIVE, RELINQUISH AND RELEASE PROVIDER AND ITS AFFILIATES FROM) ANY REQUIREMENT OR REMEDY IMPOSED BY LAW, COURT ORDER OR GOVERNMENTAL AUTHORITY TO PROVIDE CUSTOMER WITH NOTICE OF ANY BREACH OF OR COMPROMISE IN (OR POSSIBLE OR THREATENED BREACH OF OR COMPROMISE IN) SECURITY OR PRIVACY OR TO COMPENSATE CUSTOMER OR ANY OTHER PERSONS FOR ANY LOSSES, LIABILITIES OR OTHER DAMAGES DUE TO, OR ARISING FROM, ANY BREACH OF OR COMPROMISE IN (OR POSSIBLE OR THREATENED BREACH OF OR COMPROMISE IN) SECURITY OR PRIVACY (WHETHER AS TO THE SERVICES, OTHER PROVIDER MATERIALS, PROVIDER SYSTEMS OR OTHERWISE).
8.3.CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN THE UNENUMERATED SENTENCE AT THE END OF SECTION 8, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWO TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWO MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR FIVE HUNDRED ($500.00) DOLLARS, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The exclusions and limitations in this Section 8 do not apply to the extent of Provider’s gross negligence or willful misconduct.
9. Indemnification.
9.1. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider, its Affiliates, Subcontractors and Provider Personnel and each of its and their respective successors, heirs, legatees and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party caused by. based on, arising out of or resulting from, or are alleged to be caused by, based on, arising out of or resulting from, any of the following:
(a) Customer Personnel Provisioning, or attempting to Provision, any Digital Assets onto any End User Computer (including, without limitation, a Digital Asset Failure);
(b) Any use of the Services by Customer Personnel not in strict accordance with the Specifications;
(c) Any unlicensed use or access of the Services by Customer Personnel;
(d) Any unauthorized use or access of Provider Materials by Customer Personnel;
(e) Customer Data, including, without limitation, any Processing of Customer Data by or on behalf of Provider in material compliance with Provider’s obligations under this Agreement;
(f) any other materials or information (including, without limitation, any documents, data, specifications, Digital Assets, software, content, or technology) provided by or on behalf of Customer Group or any Customer User, including, without limitation, Provider’s compliance with any specifications or directions provided by or on behalf of Customer Group or any Customer User;
(g) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, assignments, promises or obligations under this Agreement;
(h) Customer Failures;
(i) negligence, gross negligence, or more culpable act or omission (including, without limitation, recklessness or willful misconduct) by Customer Group, any Customer User or any Customer Personnel in any way related to or connected with this Agreement, Digital Assets, End User Computers, the Services, Provider Systems, other Provider Materials or customers’ of Customer Group; or,
(j) even where Provider has been negligent, Customer Personnel Provisioning, or attempting to Provision, any Digital Assets onto any Prohibited End User Computer (as such term is defined in Section 1.2.1(c) (including, without limitation, a Digital Asset Failure); or,
(k) even where Provider has been negligent, Customer Personnel Provisioning, or attempting to Provision, any Digital Assets onto any End User Computer (including, without limitation, a Digital Asset Failure) which is an activity prohibited by Section 3.11.
9.2. Indemnification Procedure. Customer shall not settle any such Action without the Provider Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed (and, in no case shall Provider or any Provider Indemnitee have to admit any civil, criminal or other liability in order to settle the matter). If Customer fails or refuses to promptly assume control of the defense of such Action, the Provider Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Customer, in each case in such manner and on such terms as the Provider Indemnitee may deem appropriate. The Provider Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve Customer of its obligations under this Section 9, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.
10. Termination.
10.1. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, including, without limitation, at the conclusion of the Term or as otherwise terminated pursuant to Section 1.5, except as expressly otherwise provided in this Agreement (which exception includes, without limitation, applying the provisions of Section 10.2):
(a) subject to Section 10.1(d), all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; provided that, for clarity, Provider’s right, title and interest in and to Resultant Data and System User Data (including, without limitation, Customer’s assignment to Provider under Section 6.6) does not terminate, dissolve, revoke or end whatsoever;
(b) subject to Section 10.1(d), Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information, provided that, for clarity, Provider’s obligations under this Section 10.1(b) do not apply to any Resultant Data or System User Data;
(c) Customer shall immediately cease all use of and access to any and all Services, Provider Systems and other Provider Materials and also do the following: (i) subject to Section 10.1(d)(i), promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls (including, without limitation, all Customer Accessible Systems); and, (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 10.1(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control:
(i) if required by applicable Law, to the extent and for so long as required: the Receiving Party may retain the Disclosing Party’s Confidential Information and Provider may retain Customer Data, each in its then current state but neither for use in any production environment nor for other use or disclosure; provided, that nothing herein restricts or limits Provider’s use or ownership of Resultant Data or System User Data;
(ii) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and
(iii) all Confidential Information described in this Section 10.1(d) will remain subject to all confidentiality requirements of this Agreement; and,
(e) Provider may disable all Customer and Authorized User or other Customer User Access to or use of the Services, Provider Systems and other Provider Materials.
10.2. Surviving Terms. The provisions set forth in the following sections (and any other right or obligation of the parties in this Agreement that, by its nature, should or are stated to survive termination or expiration of this Agreement) will and do hereby survive any expiration, termination, rescission, dissolution, cancelation, revocation, voiding or otherwise end whatsoever of or to this Agreement: 1.4, 2.1, 2.2, 2.5, 2.6, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 4.3 (including, without limitation, the DISCLAIMER), 4.4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. For the avoidance of doubt, survival of a section hereby means that all subsections, at any tier, and parts thereof, survive.
11. Dispute Resolution By Arbitration. Any claim, dispute, or controversy arising out of, relating to, or in connection with, directly or indirectly, the formation, existence, creation, modification, extinguishment, performance, enforcement, breach, termination, expiration, dissolution, rescission, revocation, voiding, nullifying, end, validity or interpretation thereof or any provision of this Agreement (collectively, “Arbitration Claims”, which, and for the avoidance of doubt, Arbitration Claims include, without limitation, any claim, dispute, or controversy arising out of, relating to, or in connection with, directly or indirectly, the interpretation, settlement and resolution of the scope of these arbitration provisions) shall be settled by binding, nonappealable arbitration in accordance with the Commercial Rules of the American Arbitration Association (the “Commercial Rules”) and, to the extent not inconsistent therewith, the Federal Arbitration Act (9 USC §§ 1 et seq.); provided, that the arbitration panel shall have no less than the powers granted to arbitrators under the Federal Arbitration Act except as such powers are expressly limited by this Section 11. Arbitration Claims shall be brought solely by a party in that party’s individual or singular corporate capacity not as part of, or as a representative of, a class. The arbitration shall be held in Baton Rouge, Louisiana. Judgment by the arbitration panel may be entered by any court having jurisdiction thereof. The arbitration panel shall be composed of one arbitrator who is an attorney with at least ten (10) years experience in representing one or more companies in their licensing of software content and who has at least three (3) years experience in software development. The arbitration shall be conducted with only such discovery as ordered by the arbitration panel (in accordance with the Commercial Rules) or agreed upon by Customer and Provider (the “Authorized Discovery”). As to compelling discovery from a third party, Customer and Provider may, if available, take advantage of, and initiate and resort to the use of, any federal or state court jurisdiction or power but solely for and limited to the purpose of obtaining such Authorized Discovery and thus not for any other purpose. Except as aforesaid, only the Commercial Rules, and not the federal or state law of any jurisdiction in which the arbitration is pending (and also not the federal or state law of any other state), shall govern discovery matters. The arbitration panel’s award shall be final, binding and nonappealable. The arbitration panel’s award shall be a “simple” award (which may, but need not, contain orders to perform, do or not do anything) and so shall not have any written reasons or findings of fact. The Nineteenth Judicial District Court of the State of Louisiana as well as the United States District Court for the Middle District of Louisiana (the “Preferred Courts”) shall have: (i) exclusive jurisdiction and venue over any action by a party hereto against the other party to nullify, vacate, set aside, revoke, challenge or otherwise contest the arbitration award; and, otherwise shall have nonexclusive jurisdiction and venue over any action concerning the enforcement of an arbitration award, or (ii) if, in the unlikely event, arbitration is not permitted by law, then exclusive jurisdiction and venue over all Arbitration Claims which are not permitted to be arbitrated. Each party unconditionally and irrevocably submits to the jurisdiction and venue of the Preferred Courts and neither party will object to such jurisdiction and venue on the grounds of lack of personal jurisdiction, inconvenient forum or otherwise. CUSTOMER AND PROVIDER IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING FOR, ARISING OUT OF OR RELATED TO ANY AND ALL ARBITRATION CLAIMS. Except for remedies expressly provided for in this Agreement, the arbitration panel shall neither be empowered to award damages in excess of actual damages nor to award punitive damages. Subject to the above, the arbitration panel shall have the authority to require specific performance or impose other equitable relief hereunder, as well as imposing money damages and awards of attorneys' fees to the prevailing party.
11.2. Injunctive or Equitable Relief. Notwithstanding the foregoing, either Customer or Provider shall have the right at any time, whether during the pendency of the arbitration or otherwise, to seek any interim injunctive or other temporary or interim equitable relief in either of the Preferred Courts to obtain the benefit of Section 13.14 pending, or during the pendency of, the arbitration proceeding.
12. Definitions. As used in this Agreement, the following terms have the meaning ascribed thereto.
12.1.“Access” means, in addition to its ordinary meaning, connect, upload, download, communicate or otherwise transmit; and, all such terms are to be understood and interpreted in both a one-way and bi-directional sense (such as, but not limited to, “access to” would include “upload to” or “download from” or “communicate to, from or with”).
12.2.” Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
12.3.” Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
12.4.” Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 25 % of the voting securities of a Person.
12.5.” Agreement” means this document, styled as “Immy.Bot Terms of Use.”
12.6.” Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the license granted to Customer pursuant to this Agreement.
12.7.“Confidential Information” has the meaning set forth in Section 6.1
12.8.“Customer Accessible Systems” means, collectively, all of the Customer Systems and all of the End User Systems.
12.9.”Customer Data” means information, data, and other content (including, without limitation, Customer Supplied Digital Assets), in any form or medium, that is collected, uploaded, downloaded, or otherwise received, directly or indirectly from Customer Group or a Customer User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services; provided that, and notwithstanding the forgoing, the definition of “Customer Data”: (a) does not include, and hereby expressly excludes, Resultant Data or any other information (including, without limitation, meta-data) reflecting the access or use of the Services, Provider Systems or other Provider Materials by or on behalf of Customer Group or any Customer User (such other information “System User Data”); and, (b) includes information about End User Systems, the identity of any End Users, and End User Package Combinations but the forgoing provision of this subsection (b) does not, and shall not be interpreted to, limit or restrict whatsoever the definition of “Resultant Data”.
12.10. “Customer Failure” has the meaning set forth in Section 3.2.
12.11. “Customer Group” means, collectively, Customer and its Affiliates.
12.12. “Customer Personnel” means, except as excluded by the last sentence of this definition, all Persons who are members, shareholders, managers, directors, officers, employees, agents, consultants, vendors, suppliers or contractors of or to Customer Group or of or to Customer Group’s customers (including, without limitation, Customer Users). For the avoidance of doubt, Provider and all Provider Personnel are hereby expressly excluded from the definition of “Customer Personnel”.
12.13. “Customer Supplied Digital Assets” has the meaning set forth in Section 12.33.
12.14. “Customer Systems” means the Customer Group’s IT Infrastructure whether owned, rented, leased or operated by Customer Group or, through the use of third-party services, for Customer Group (such third-party services including, but not limited to, SaaS products, server farms, leased server environments, PaaS, AWS, Azure or a like server availability service or offering); provided that, notwithstanding the foregoing, the term “Customer Systems” hereby expressly excludes Provider Systems.
12.15. “Customer User” means, except as excluded by the last sentence of this definition, each of the following: (a) whether or not an Authorized User, each Person who (whether or not authorized) has, at any time, used or accessed (or gains, at any time, use of or access to) any of the following: (1) any means within the control of, or at any time operated or used by, Customer Group or any Authorized User; or, (2) any Customer Accessible Systems; and, (b) each Authorized User. Without limiting the breadth and generality of the above phrase “means within the control of”, such “means” is hereby deemed to include any “means” which would be within the control of Customer Group if Customer Group, acting diligently in employing and maintaining best security and privacy practices, should or would have been in, control of such “means”. For the avoidance of doubt, Provider and all Provider Personnel are hereby expressly excluded from the definition of “Customer User”.
12.16. “Digital Asset” means a software application, software package, batch file, script, text file, image, video, sound recording, or any other file including any paid for or no cost software, code or data.
12.17. “Digital Asset Failure ” has the meaning set forth in Section 3.2.
12.18. “Documentation” means any manuals, instructions, or other documents or materials (including, without limitation, videos) that the Provider provides or makes available to Customer in any form or medium or method of access and which describe, or provide any training for or about, the functionality, components, features, or requirements of the Services, Provider Systems or other Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
12.19 “Early Termination” has the meaning ascribed there to in Section 1.6
12.20.”Effective Date” has the meaning set forth in the preamble of this Agreement.
12.21. “End User” means the intended or actual operators of an End User Computer. Where an End User Computer is a server, the End User means the administrator or other persons responsible for managing the technical operations of the server.
12.22. “End User Computer” means a personal computer (whether a physical or virtual workstation, laptop, tablet or other like or substitute device), server (whether physical or virtual), or other computing device (whether physical or virtual) which Customer can, does, or attempts to access (whether directly or indirectly, including, without limitation, directly or indirectly via use of the Services) during the Term (and regardless of whether Customer owns, rents, leases or operates it or of whether any one or more of Customer’s direct or indirect customers, vendors, suppliers or contractors own, rent, lease or operate it); provided that, notwithstanding the forgoing, the term “End User Computer” hereby expressly excludes a personal computer (whether a physical or virtual workstation, laptop, tablet or other like or substitute device), server (whether physical or virtual), or other computing device (whether physical or virtual) which Provider owns, rents or leases (and, for the avoidance of doubt, it is hereby agreed that the mere access to or use of a thing by Provider (such as, but not limited to, in providing any Services, troubleshooting, diagnosis or other support or maintenance) does not and shall not thereby alone mean that such thing is owned, rented, leased or operated by Provider or, through the use of third-party services, for Provider).
12.23. “End User Systems” means all End User Computers and all private computer networks connected thereto; provided that, notwithstanding the foregoing, the term “End User Systems” hereby expressly excludes Provider Systems.
12.24. “End User Package Combination” means the specific combination of software applications requested by Customer to be Provisioned onto an End User Computer.
12.25. “Harmful Code” means, except as set forth in the last sentence of this definition, any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services, Provider Systems or other Provider Materials as intended by this Agreement. The definition of “Harmful Code” does not include any Provider Disabling Device.
12.26. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
12.27. “IT Infrastructure” means, in addition to its ordinary meaning, computers, software, hardware, databases, electronic systems (including database management systems), and networks.
12.28. ”Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
12.29. ”Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, expert fees, investigatory fees, and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
12.30. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental
authority, unincorporated organization, trust, association, or other entity.
12.31. “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
12.32. “Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services or Provider Systems automatically with the passage of time or under the positive control of Provider or its designee.
12.33.”Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services (including, without limitation, Digital Assets which Provider has made generally available as part of the Services for use in Provisioning by Provider’s customers) or otherwise comprise or relate to the Services or Provider Systems; provided that, and notwithstanding the forgoing, Provider Materials: (a) include Resultant Data and System User Data, but do not include Customer Data; and, (b) do not include Digital Assets which Customer uploads, transmits or otherwise delivers to, or otherwise stores in (or causes to be uploaded, transmitted or otherwise delivered to, or otherwise stored in) Provider Systems for Customer’s use in Provisioning or in otherwise using the Services (collectively, “Customer Supplied Digital Assets”).
12.34. “Provider Personnel” means all Subcontractors and all Persons who are members, shareholders, managers, directors, officers, employees or agents of Provider or any Subcontractor.
12.35. “Provider Systems” means Provider’s IT Infrastructure, whether owned, rented, leased or operated by Provider or, through the use of third-party services, for Provider (such third-party services including, but not limited to, SaaS products, server farms, leased server environments, PaaS, AWS, Azure or a like server availability service or offering); provided that, notwithstanding the foregoing, the term “Provider Systems” hereby expressly excludes: (a) IT Infrastructure which is owned, rented or leased by Customer or by Customer’s customers; and (b) End User Systems; and, further provided, for the avoidance of doubt, it is hereby agreed that the mere access to or use of a thing by Provider (such as, but not limited to, in providing any Services, troubleshooting, diagnosing or other support or maintenance) does not and shall not thereby alone mean that such thing is, as such phrase is used above in this definition, “owned, rented, leased or operated by Provider or, through the use of third-party services, for Provider”. In interpreting the terms “Customer Systems” and “Provider Systems”, it is the intent of the Parties that no computer or other IT Infrastructure can be both a part of the Customer Systems and of the Provider Systems.
12.36. “Provision” means the use (whether persistently, periodically, sporadically, occasionally or only once) of a remote monitoring and management application on, or to affect a change on or monitoring of, an End User Computer to install, update, edit, adapt, alter, delete, remove or otherwise change, or to detect or otherwise monitor, any Digital Assets on, onto or from that End User Computer.
12.37. “Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
12.38. “Resultant Data” means data (including, without limitation, meta-data) and information of, about, or related to Customer’s or Customer’s Users’ use of, or access to, the Services or Provider Systems or Customer Accessible Systems that is or may be used by Provider or Subcontractors in an aggregate and anonymized manner, including to compile statistical and performance information related to the delivery, maintenance, operation, or improvement of the Services, Provider Systems or other Provider Materials.
12.39. “Services” means the software-as-a-service offering made available, at the then time of access or use, through the website available at https://immy.bot or a sub-domain thereof.
12.40. “Specifications” means the specifications for the Services set forth in in the webpage available at https://immy.bot.
12.41. “Subcontractor” means any vendor, supplier or other Person who sells, licenses or otherwise provides any goods, services or other products to Provider to perform, supply, support, maintain, repair or otherwise provide all or any part of the Services, Provider Systems or other Provider Materials; provided that, and for the avoidance of doubt, Customer (and notwithstanding any trial testing, troubleshooting, diagnosing, analysis, error resolution, repair activities, reporting or notifying by Customer of any features, functions, performance, errors, problems or other characteristics of the Services, Provider Systems or other Provider Materials) is hereby excluded from the definition of “Subcontractor” and, also, and each of Customer’s customers for whom Customer supplies, maintains or otherwise supports their End User Computers are hereby expressly excluded from the definition of “Subcontractor”.
12.42. “System User Data” has the meaning set forth in Section 12.10.
12.43 “Term” has the meaning set forth in Section 1.6.
12.44. “Third-Party Materials” means materials, software, and information, in any form or medium (including any open-source or other software, documents, data, content, specifications, products, equipment, or components) licensed from a third party to Customer or Customer’s customer, which materials, software, or information communicates to or from, interoperates with, or interfaces with (whether successful or unsuccessful) any part of the Services.
13. Miscellaneous.
13.1. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
13.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.3. No Public Announcements Or Commentary. Customer agrees that neither Customer nor any Customer Personnel shall issue, release, publish, publicize, report, advertise, market, promote, transmit or otherwise make, or cause to be made, any announcement, statement, press release, commentary, opinion, analysis, critique, evaluation, report, review, assessment, content or other information about, concerning or relating to the Services, Provider Systems, other Provider Materials, Provider or this Agreement without the written consent of Provider.
13.4. Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to the Party as listed below. Where both a physical address and an e-mail address are listed, notice must be delivered via a nationally recognized overnight courier service, signature required, with a copy of same sent via e-mail.
If to Provider:
ImmyBot, LLC
10988 N. Harrells Ferry Road #7
Baton Rouge, LA 70816
If to Customer:
Notices sent in accordance with this Section 13.4 will be deemed effectively given upon receipt by the nationally recognized overnight courier.
13.5. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
13.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.7. Entire Agreement. This Agreement, together with the Specifications constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
13.9. Force Majeure.
(a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.11. Amendment and Modification; Waiver. No amendment to, or modification, rescission, termination, or discharge of, this Agreement is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of, this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.13. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Louisiana. Additionally, and for the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
13.14. Temporary Or Interim Equitable Relief. Subject to Section 11, each Party (the “Breaching Party”) acknowledges and agrees that a breach or threatened breach by the Breaching Party of any of its obligations under Sections 2.1, 3.3, 3.8, 5, 6, or 11 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, said other Party will be entitled to temporary or interim equitable relief from the arbitration panel or the Preferred Courts , including a temporary or interim restraining order, injunction, specific performance, and any other temporary or interim relief that may be available from the arbitration panel or the Preferred Courts without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Subject to Section 11, such remedies of said other Party are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.15. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees, expert fees, investigatory fees, and court costs from the non-prevailing party.
13.16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
How to Contact Us
If you have any questions or concerns regarding the Terms of Service related to our website, please feel free to contact us at the following email, telephone number or mailing address.
Email:
support@immy.bot
Mailing Address:
Immense Networks, LLC
10226 Jefferson Hwy. #100
Baton Rouge, Louisiana
70809