These Software Terms and Conditions (the “Terms and Conditions”), issued by CONSOLIDATED RESEARCH, INC. d/b/a GENERAL SLEEP CORPORATION (“Provider”), to you (“User”), govern the licensing of software (both downloadable and cloud based) and firmware related to General Sleep products (collectively, “Products”). Provider and User may be referred to herein collectively as the "Parties" or individually as a "Party."
(a) “Affiliate” means any other individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
(b) "Authorized User" means User's employees, consultants, contractors, and agents who are authorized by User to use the Products and System Software to access and use the Services under the rights granted to User pursuant to these Terms and Conditions.
(c) “Confidential Information” means information about or relating to the Disclosing Party or the Disclosing Party’s Affiliates or their respective products, inventions (whether patentable or not), trade secrets, know-how, software, confidential Intellectual Property, specimens, data, samples, plans, designs methods, processes, test results or reports, marketing or pricing activities or plans, costs or profits, and/or any other information or materials and that is not generally known to the public, whether in oral, written, electronic, or other form or media, whether or not such information is marked, designated, or otherwise identified as “confidential” and whether or not such items would be considered trade secrets under applicable law.
(d) "User Data" means information, data, and other content, in any form or medium that is measured, detected, created, or otherwise generated by the System Software that is submitted, posted, or otherwise transmitted by or on behalf of User or an Authorized User through the Downloadable Software or the Services.
(e) “Disclosing Party” means the Party disclosing or making available an item of Confidential Information or with respect to which an item of Confidential Information is about or relates.
(f) "Documentation" means Provider's material, including without limitation online user guides relating to the Products and System Software provided by Provider to User either electronically through an online support portal or in hard copy form/end user documentation available at https://www.generalsleep.com/zmachine-insight.html and https://www.generalsleep.com/zmachine-synergy.html, but not limited thereto.
(g) “Downloadable Software” means software, in whole or components, including without limitation any downloadable tools, modules, components, or other software that Provider makes available for download specifically for purposes of facilitating access to, operation of, or use with the Products, Firmware, or Services, and any updates Provider may make available to such software from time-to-time.
(h) “Firmware” means any software programming and/or microcode pre-installed, incorporated, or otherwise embedded into the Products.
(i) “Products” means all products offered by Provider, including without limitation, sleep systems offered under the brand Zmachine.
(j) "Provider IP" means the System Software, the Documentation, and any and all Intellectual Property provided to User or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include User Data.
(k) “Intellectual Property” means any and all registered and unregistered throughout the world (i) patents, patent applications, patent disclosures and related improvements, including without limitation all provisional, nonprovisional, utility, continuation, divisional, continuations-in-part, reexaminations, reissues designs, and utility models with all renewals and extensions thereof (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, URLs, Internet domain names, and second-level domain names, along with any associated goodwill, (iii) copyrights and copyrightable works, software and firmware, including any derivative works (iv) trade secrets and confidential business information (including ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, research and development information, software, drawings, specifications, designs, plans, proposals, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans and User and supplier lists and information), (v) social media, (vi) registrations and applications to register any of the foregoing, if applicable, and (vii) rights to sue with respect to past and future infringements of any of the foregoing.
(l) “Receiving Party” means the Party receiving any item of Confidential Information from or with respect to the Disclosing Party.
(m) “Sales Document” means the definition set forth in the General Sleep Corporation Terms and Conditions.
(n) "Services" means any cloud-based software, including without limitation, software-as-a-service, offering that Provider makes available for access and use specifically for purposes of facilitating access to, operation of, or use with the Products, Downloadable Software, or Firmware, and any updates Provider may make available to such software from time-to-time, and any Documentation.
(o) “System Software” means the Downloadable Software, Firmware, and the Services.
(a) Provision of Access to Services. Provider hereby grants User a non-exclusive, nontransferable, nonsublicensable, limited right to access and use the Services solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to User's internal use. Provider shall provide to User the ability to establish login credentials such as usernames and passwords, and network links or connections to allow User access to the Services. These Terms and Conditions are binding on all Authorized Users, and User shall ensure compliance of all the terms and conditions herein by its Authorized Users.
(b) Downloadable Software and Documentation License. Provider hereby grants to User a non-exclusive, revocable, non-sublicensable, non-transferable license for User's internal business purposes in connection with its use of the Firmware and the Services to: (i) install, use, and run the Downloadable Software, in object code format only, and the Documentation solely for User's internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for User's internal business purposes in connection with User's use of the System Software. User may make a reasonable number of copies of the Downloadable Software for back-up, disaster recovery, and testing purposes. Any such copy of the Downloadable Software: (i) remains Provider's exclusive property; (ii) is subject to these Terms and Conditions; and (iii) must include all copyright or other proprietary rights notices contained in the original Downloadable Software and Documentation.
(c) Firmware License. Provider hereby grants to User a non-exclusive, revocable, non-sublicensable, non-transferable license to use the Firmware solely for User's internal business purposes and in connection with the Products in which the Firmware is pre-installed, incorporated, or otherwise embedded.
(d) Specifications. User shall ensure that its network and systems comply with the relevant specifications provided by Provider from time to time and shall provide Provider with information as may be required by Provider in order to provide the System Software. User is responsible for obtaining, maintaining, and supporting all Internet access, computer hardware, and other equipment, products and services needed for it to utilize the System Software, including but not limited to keeping any third party license in good standing. In the event User fails to obtain, maintain, and support the necessary access to use the System Software, User acknowledges and agrees that it may lose access to the System Software. In the event User does not provide the information, licenses, and other such information as set forth herein then Provider shall not be deemed to be in breach of these Terms and Conditions. User will determine the access controls for its authorized users and will be responsible for activity occurring under User’s account, including compliance with these Terms and Conditions. User agrees to: (i) timely (within thirty (30) days of any change) maintain the accuracy and completeness of information provided to Provider, and (ii) notify Provider immediately of any unauthorized use of User’s account or any other known breach of security.
(e) Scheduled Downtime and Outages. Provider shall use commercially reasonable efforts for Scheduled Downtime in a manner that is of minimum interruption to User. In the event of a service failure where the Services are inaccessible, Provider shall use commercially reasonable efforts to resolve the service failure in a timely manner. If the service failure is not resolved in seventy-two (72) hours, as determined by Provider, Provider shall extend the Term of these Terms and Conditions by the equivalent amount of days of the service failure. This Section 2(e) sets forth Provider's sole obligation and liability and User's sole remedy for any service failure.
(f) Use Restrictions. User shall not use the System Software or Documentation for any purposes beyond the scope of the access, use, and licenses granted in these Terms and Conditions. User shall be responsible for Authorized Users’ adherence to these Terms and Conditions, and shall not permit any Authorized Users at any time to directly or indirectly to: (i) copy, modify, or create derivative works of the System Software or Documentation in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the System Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the System Software in whole or in part; (iv) remove any proprietary notices from the System Software or Documentation; (v) remove and/or alter any trademark, logo, copyright and/or other proprietary and/or confidentiality notices, legends symbols and/or labels on and/or in the System Software or Documentation; (vi) merge any System Software and/or any portion thereof with any other program and/or materials; (vii) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the System Software, Provider’s business operations and/or other Users; and/or (viii) permit any other person and/or entity to engage in any of the foregoing conduct. Provider reserves all rights and licenses in and to the System Software and Documentation not expressly granted to User. Except for the limited rights and licenses expressly granted under these Terms and Conditions, nothing in these Terms and Conditions grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to the System Software or Documentation.
(a) Confidential Information. Except as expressly permitted under these Terms and Conditions, or as otherwise permitted in writing by the Disclosing Party, neither the Receiving Party, any Affiliate of the Receiving Party or any officer, director, manager, employee or agent of either the Receiving Party or any Affiliate of the Receiving Party (the “Related Parties”) will (a) disclose to any person all or any part of any Confidential Information, (b) act unreasonably or fail to act reasonably so as to impair the confidential or proprietary nature of any Confidential Information, or (c) use all or, any part of any Confidential Information for any purpose whatsoever other than performing the Receiving Party’s rights and obligations under these Terms and Conditions. The Receiving Party will be responsible to the Disclosing Party for any breach by a Related Party of its obligations under this Section 3.1. The Confidential Information may be given to and used by Related Parties solely for performing the Receiving Party’s rights and obligations under these Terms and Conditions. The Receiving Party will take all such actions as are reasonably necessary to ensure that each Related Party having access to any Confidential Information does not disclose, use, act or fail to act as required by this Article 3, and Receiving Party will be liable to the Disclosing Party for any breach of these obligations by the Related Parties. The Receiving Party shall use reasonable care, at least as protective as the efforts it uses for its own Confidential Information of a similar nature, to safeguard the Disclosing Party’s Confidential Information from use or disclosure other than as permitted hereby. Each Party hereby retains its entire right, title and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information under these Terms and Conditions shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title or interest whatsoever to the Receiving Party or any of its Related Parties.
(b) Limitations on Application of Confidentiality Obligations. Notwithstanding anything to the contrary, “Confidential Information” will not mean information that (i) is in the public domain at the time of its disclosure to the Receiving Party, (ii) goes into the public domain after disclosure to the Receiving Party through no breach of any obligation of confidentiality to the Disclosing Party or any third person by the Receiving Party or any Related Party, (iii) is disclosed to the Receiving Party by a third party who is under no obligation of confidentiality to the Disclosing Party, (iv) is already known to the Receiving Party at the time of disclosure to the Receiving Party as evidenced by written documentation, (v) is independently developed by the Receiving Party without using Confidential Information of the Disclosing Party as evidenced by written documentation, or (vi) is required to be disclosed by the Receiving Party pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”); provided, however, that prior to making any disclosure pursuant to a Legal Order, Receiving Party shall (unless legally prohibited) provide Disclosing Party with (i) prompt written notice of such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy and (ii) reasonable assistance, at Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance, Receiving Party remains subject to a Legal Order to disclose any Confidential Information, Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of Receiving Party’s legal counsel, such Legal Order specifically requires Receiving Party to disclose and, upon Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment. A Party disclosing Intellectual Property pursuant to this Section 3 will remain the exclusive owner of such Intellectual Property and the disclosure will not be considered a license with respect to such disclosed Intellectual Property.
(c) Methods of Disclosure. Confidential Information disclosed under Section 3, will be disclosed by each Party to the other Party in any and all ways reasonably acceptable to the Receiving Party and appropriate for the Intellectual Property that is subject to disclosure. Confidential Information that is in or has been reduced to tangible or written form will be disclosed in such form to the Receiving Party. Confidential Information that may be disclosed only by visual observation or teaching will be disclosed by demonstrating it or teaching it to technically competent representatives of the Receiving Party. Any meetings or visits at which demonstration or teaching of Confidential Information or Intellectual Property is to occur will be at mutually agreeable times and places. All such disclosures shall remain subject to the confidentiality provisions herein and any other non-disclosure agreement entered into by the Parties.
(d) Unauthorized Access to Confidential Information. In the event any Confidential Information provided to the Receiving Party is accessed by a third party who is not authorized to receive such information under these Terms and Conditions, the Receiving Party shall promptly notify the Disclosing Party of the events and circumstances involving such unauthorized access and provide a summary of the Confidential Information that was improperly accessed, the remedial actions it plans to take and will (to the extent legally permitted) reasonably cooperate with the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure in breach of these Terms and Conditions.
(a) Provider IP. User acknowledges that, as between User and Provider, Provider owns and shall retain all right, title, and interest, including all Intellectual Property rights, in and to the Provider IP. Provider shall retain exclusive ownership to all inventions, enhancements, improvements, developments, designs, drawings, documentation, plans, schedules, programs, specifications, software, technology, discoveries, its Confidential Information, ideas, and other works of authorship, that are conceived, created, or reduced to practice in connection with the Products supplied and services performed by Provider in connection with the System Software and Documentation under these Terms and Conditions (collectively “Work Product”) and all related Intellectual Property. To the extent User provides feedback of new ideas to Provider or otherwise creates, conceives, develops, or reduces to practice any Work Product based on Provider IP, or Provider’s Confidential Information (collectively, “Improvement IP”), such Improvement IP and related Intellectual Property shall be deemed a work made for hire such that Provider is the author and owner, and if not deemed a work made for hire, User hereby irrevocably assigns to Provider all right, title, and interest in and to Improvement IP and related Intellectual Property to Provider. Under no circumstances shall User have any right under or to Improvement IP or Provider IP. User shall not use any Provider IP without Provider’s prior written consent. Without limiting the foregoing and excluding the Provider IP and Improvement IP, User may not use the Products, System Software or Documentation to develop or validate a competing device or technology for a period of two years after expiration or termination of these Terms and Conditions.
(b) Cooperation. User shall, and shall cause its employees or any contractors to, take all appropriate action and execute and deliver all documents necessary or reasonably requested by Provider to effectuate any of the provisions or purposes of Section 4 or otherwise, as may be necessary or useful for Provider to prosecute, register, perfect, record, maintain, enforce or defend its rights in or to any Work Product or any Intellectual Property related to the System Software and Documentation. User hereby appoints Provider as Provider’s attorney-in-fact with full irrevocable power and authority to take any such actions and execute any such documents if User refuses or otherwise fails, to do so within a period deemed reasonable by Provider.
(c) User Data. Provider acknowledges that, as between Provider and User, User owns all right, title, and interest, including all Intellectual Property, in and to the User Data. User is responsible for providing all User Data and/or information and responsible for the accuracy, quality, integrity, and legality of such data and of the means by which Authorized Users access and use the User Data. Further, as between Provider and User, User shall maintain data privacy at a level at least as stringent as Provider. User hereby grants to Provider a non-exclusive, royalty-free, irrevocable, transferable, sublicensable, worldwide license to reproduce, distribute, prepare derivative works, display, perform, transmit, and use the User Data (i) to the extent necessary for Provider to provide the System Software to User; and (ii) to use anonymized User Data for its own business purposes.
(d) Cyber Incidents. User shall take all reasonable and appropriate steps to protect its systems used to view, receive, collect or store any of its User Data, Confidential Information, and data against all cyber incidents and breaches, including without limitation, ransomware attacks (collectively, “Cyber Incidents”). Upon the occurrence of a Cyber Incident, User shall cooperate with Provider in resolving the matter, including without limitation, providing prompt and on-going communication and details regarding the Cyber Incident. Additionally, User shall not introduce, permit or cause, directly or indirectly, any computer code, program, or programming device designed to disrupt, modify, delete, damage, deactivate, disable, harm, or otherwise impede the operation of the System Software or any other associated programs, firmware, hardware, computer system, or network (sometimes referred to as “Trojan horses,” “viruses,” or “worms”), or any other similar harmful, malicious, or hidden procedures, routines, or mechanisms that would intentionally cause such System Software, including any part of the System Software, to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications.
(a) With respect to Services, User Data can be extracted from the System Software by the user through data interfaces and/or reports. Authorized Users may also request a raw data extract from Provider. User’s raw data may be provided for up to one year from the expiration or termination of these Terms and Conditions at a reasonable fee as determined by Provider.
(a) Provider warrants that during the Term of these Terms and Conditions the System Software will conform in material respects in connection with the Products.
(b) DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6(a), USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE DOCUMENTATION, SYSTEM SOFTWARE, DATA GENERATED FROM THE SYSTEM SOFTWARE, AND ALL UPDATES THERETO ARE BEING PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS AND ANY USE IS AT USER’S SOLE RISK. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE DOCUMENTATION, SYSTEM SOFTWARE, DATA GENERATED FROM THE SYSTEM SOFTWARE, AND PROVIDER IP (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY PROVIDER IN CONNECTION WITH THESE TERMS AND CONDITIONS, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. PROVIDER DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE PRODUCTS AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PROVIDER HAS BEEN INFORMED OF SUCH PURPOSE), OF ACCURACY, AND OF QUIET ENJOYMENT.
(c) Applicability of Warranties. Notwithstanding anything herein to the contrary, no warranties shall apply if the System Software: (i) have been modified by User; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Provider; (iii) is used in ultrahazardous activities; or (iv) has been used in any manner contrary to these Terms and Conditions.
(d) Third-Party Services and Products. User acknowledges and agrees that (i) Provider has not verified or pre-screened any third-party services and/or products, (ii) User is responsible for and assumes all risk arising from its use of any third party service and/or product, and (iii) Provider will not be responsible or liable for the availability or accuracy of such third-party services and/or product or the content, products, or services on or available from such third parties.
(a) Provider shall indemnify, defend, and hold harmless User from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by User resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Provider IP, or any use of the System Software in accordance with these Terms and Conditions, directly infringes or misappropriates such third party's intellectual property rights, provided that User promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(b) If such a Third-Party Claim is made or appears possible, User agrees to permit Provider, at Provider's sole expense, to (A) modify or replace the Provider IP, or component or part thereof, to make it non-infringing, or (B) obtain the right for User to continue use. If neither of these alternatives are commercially reasonable, Provider may terminate these Terms and Conditions, in its entirety or with respect to the affected component or part, effective immediately on written notice to User, provided that Provider shall refund or credit to User all amounts User actually paid in respect of the Provider IP that User cannot reasonably use as intended under these Terms and Conditions. The indemnity in this Section, shall not apply (i) to a Third-Party Claim arising from any modification of the System Software by User or any third party, or from the use of the System Software in combination with any other items not provided by Provider, to the extent such modification and/or use in combination resulted in the infringement claim, (ii) to use of System Software in a manner contrary to the terms specified herein, (iii) if such Third-Party Claim results from User’s use of the System Software after notice of the alleged or actual infringement from Provider or any appropriate authority, and/or (iv) in the event of any breach of User’s obligations under these Terms and Conditions, or the use of the System Software other than in connection with these Terms and Conditions or in a manner not reasonably contemplated by these Terms and Conditions.
(c) User shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, employees, agents, and representatives from and against any losses resulting from any Third-Party Claim based on User's, or any Authorized User's: (i) negligence or willful misconduct; (ii) use of the System Software in a manner not authorized or contemplated by these Terms and Conditions; (iii) use of the System Software in combination with data, software, firmware, hardware, equipment or technology not provided by Provider or authorized by User in writing; (iv) modifications relating to or to the System Software not made by Licensor; (v) use of any version other than the most current version of the System Software delivered to User; or (vi) User’s misuse of data generated by the System Software, provided that User may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-Party Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE OR BREACH OF THESE TERMS AND CONDITIONS), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, PROVIDED, HOWEVER, THESE LIMITATIONS SHALL NOT APPLY TO EITHER PARTY’S LIABILITY FOR (I) CLAIMS THAT ARE SUBJECT TO INDEMNIFICATION UNDER SECTION 7 AND (II) BREACH OF SECTION 2, SECTION 3, OR SECTION 4.
(a) Term. The term of these Terms and Conditions begins when User exercises its rights under Section 2(a), 2(b), or 2(c), and, unless terminated earlier pursuant to these Terms and Conditions express provisions, will continue in effect until the expiration of the term set forth in Sales Document (“Term"). These Terms and Conditions may renew for additional Terms with User’s written notice and payment of additional fees, including but not limited to, additional subscription fees as set forth in the Sales Document.
(b) Termination. In addition to any other express termination right set forth in these Terms and Conditions:
(i) Provider may terminate these Terms and Conditions for convenience, for any reason or no reason, upon ninety (90) days prior written notice to User;
(ii) either Party may terminate these Terms and Conditions, effective on written notice to the other Party, if the other Party materially breaches these Terms and Conditions, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms and Conditions, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms and Conditions, User shall immediately discontinue use of the Provider IP and, without limiting User's obligations under Section 4, User shall delete, destroy, or return all copies of the Provider IP and Provider’s Confidential Information.
(d) Survival. This Section 9(d) and 1, 3, 4, 6, 7, 8, 9 and 10 survive any termination or expiration of these Terms and Conditions. No other provisions of these Terms and Conditions survive the expiration or earlier termination of these Terms and Conditions.
(a) Entire Agreement. These Terms and Conditions, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and Conditions and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms and Conditions, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms and Conditions, excluding its Exhibits; (ii) second, the Exhibits to these Terms and Conditions as of the Effective Date; and (iii) third, any other documents incorporated herein by reference. To the extent the terms of these Terms and Conditions conflicts with or are inconsistent with the Terms and Conditions Agreement, the terms of these Terms and Conditions shall govern solely with respect to the licensed System Software and Documentation granted access to under these Terms and Conditions.
(b) Notices. Any and all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") will be deemed duly sent when delivered in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS, or by email to an address specified in writing by the receiving party (with confirmation of receipt). Except as otherwise provided in these Terms and Conditions, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, pandemic, disease outbreaks, endemics, including without limitation COVID-19, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under the Sales Document, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms and Conditions, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms and Conditions 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 shall negotiate in good faith to modify these Terms and Conditions so as to effect their original intent 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.
(f) Governing Law; Submission to Jurisdiction. These Terms and Conditions are governed by and construed in accordance with the internal laws of the State of Ohio 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 Ohio. Any legal suit, action, or proceeding arising out of these Terms and Conditions, the access and use granted hereunder, or the licenses granted hereunder, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cleveland and County of Cuyahoga, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Provider may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of User. However, User may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment, delegation, or transfer by User in violation of this Section 10(g) is void.
(h) Export Regulation. User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export, or re-export, or release, or making accessible, of the System Software, or any User Data outside the US, including, but not limited to, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(j) Binding Effect. These Terms and Conditions will be binding upon and inure to the benefit of the Parties and their successors or permitted assigns.
26250 Euclid Avenue, Suite 709
Cleveland, Ohio 44132
United States