Terms and Conditions
THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF THE TECHNOLOGY SERVICES DESCRIBED HEREIN. BY EXECUTING AN ORDER FORM FOR THE TECHNOLOGY SERVICES OR OTHERWISE ACCESSING AND USING THE TECHNOLOGY SERVICES, YOU HEREBY ACCEPT AND AGREE TO COMPLY WITH THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT SETS FORTH EACH PARTY’S RIGHTS, OBLIGATIONS, AND LIABILITIES.
This Technology Services Agreement (“Agreement”) applies to and between LJB Inc., 2500 Newmark Drive Miamisburg, OH 45342 (the “Company”) and the organization identified in the Order (the “Client”). For purposes of this Agreement, Company and Client may be referred to individually as a “party” and collectively as the “parties”.
WHEREAS, Company is the provider of support services for certain online technology platforms and data hosting related thereto, that are set forth in the Order or otherwise made available by Company to Client,
WHEREAS, the parties desire that this Agreement serve as the agreement between them for the purposes of any Orders that Client may place with Company, from time to time; and
NOW, WHEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Client hereby agree as follows:
1. Definitions. As used in this Agreement:
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Authorized User” means an employee or independent contractor of Client that Client authorizes to use the Technology Services on Client’s behalf or any other person that uses the Technology Services pursuant to access credentials assigned to Client.
1.3. “Client Data” means any information or data, of any type or form, that is submitted by or on behalf of Client to the Technology Services.
1.4. “Company Intellectual Property” or “Company IP” means the Technology Services, the Documentation, and all intellectual property rights embedded therein as the same may be made available to Client and its Authorized Users during the Term.
1.5. “Confidential Information” shall be ascribed the meaning set forth in Section 8 of this Agreement.
1.6. “Documentation” means the user guides, assistance, instructions, technical or operational notes provided or otherwise made available by Company to Client (including via an Order) regarding the access, use, security, performance, or operation of the Technology Services.
1.7. “Order” means the schedule, quotation, statement of work, written proposal, or other document(s) by which Client orders the Technology Services pursuant to this Agreement.
1.8. “Performance Commitment” shall be ascribed the meaning set forth in Section 2.6 of this Agreement.
1.9. “Scheduled Maintenance” means occasional maintenance of the Technology Services carried out by Company, or a third-party authorized by Company, to add resources, upgrade software, install security patches or carry out other routine maintenance procedures to the Technology Services.
1.10. “Sensitive Data” means any (i) data that is considered Controlled Unclassified Information for purposes of Executive Order 13556, and any implementing regulations thereto, including data that is classified and or used on the U.S. Munitions list, including software and technical data; articles, services and related technical data designated as defense articles and defense services; and International Traffic in Arms Regulations (ITAR) related data, (ii) any data that is considered classified for purposes of Executive Order 13526 or the Atomic Energy Act, as amended, and (iii) personal data, personal information, or similar personally identifiable information that requires, or is otherwise afforded, legal protection pursuant to a data protection law, statute, or regulation, such as data or information subject to the Health Insurance Portability and Accountability Act, as amended, the Gramm-Leach-Bliley Act, as amended the General Data Protection Regulation (European Union), and the California Consumer Privacy Act, as amended.
1.11. “Support Services” shall be ascribed the meaning set forth in Section 2.7 of this Agreement.
1.12. “Technology Services” means the online, web-based, or similar information technology applications, tools, and platforms, Support Services, and data storage services Company provides Client pursuant to the Order.
1.13. “Term” means that period(s) specified in an Order during which Client will have access to and use of the Technology Services, as the same may be renewed or extended in accordance with the applicable Order.
2. Technology Services
2.1. Provision of Services. During the Term, Company grants Client a limited, non-exclusive, non-transferrable (except in accordance with Section 12.1 (Assignment)), non-sublicensable right to access and use the Technology Services in accordance with the Documentation, solely for Client’s internal business operations, in each case subject to the terms of this Agreement. Client agrees that its purchase of the Technology Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company with respect to future functionality or features.
2.2. Required Software; Third-Party Software. Client acknowledges that use of certain Technology Services may require the installation of the software owned or licensed by Company or a third-party as a prerequisite for using such Technology Services (“Required Software”). Client hereby agrees to comply with any additional terms and conditions applicable to the Required Software, which may be provided, from time to time, to Client. The Technology Software may include software components that are provided by a third party (“Third Party Software”) or that are subject to an open source license agreement, including components available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (each individually, or collectively, referred to as “Open Source Component”). Any use of Third Party Software or Open Source Component by Client shall be solely governed by the terms and conditions of the applicable Third Party Software license or Open Source Component license and not by the terms of this Agreement; when appropriate, the applicable licenses shall be set forth in the readme or about files of the Technology Services or otherwise made available by Company. The Technology Services incorporate or otherwise use software, products, and technology services that are owned and licensed by the Environmental Systems Research Institute, Inc., and its affiliates and subsidiaries (“Esri”) and the use of, and access to, any such Esri software, products, and technology services are governed by the applicable end user licensing agreement, master services agreement, products terms, and any other contractual requirements set forth by Esri (collectively, the “Esri Terms”) and not this Agreement. The Esri Terms are available at https://www.esri.com/en-us/legal/terms/full-master-agreement, or any successor website. Client agrees to comply with the Esri Terms, including any amendments or modifications which Esri, in its sole discretion, may provide thereto.
2.3. Authorized Users. Client will cause Authorized Users to abide by the terms of this Agreement. Any action or omission of an Authorized User, which, if attributable to Client would constitute a breach of this Agreement by Client, will be deemed to be a breach of this Agreement by Client. Company may terminate or suspend any Authorized User’s access to the Technology Services for any breach without notice.
2.4. Upgrades. Except to the extent otherwise required by the Order, Company may provide Client with bug fixes, patches, corrections or other updates (“Updates”) or new releases (“Upgrades”) to the Technology Services solely in its discretion. All such Updates or Upgrades shall be considered part of the Technology Services and shall be subject to the terms and conditions of this Agreement. Client will install, download, or otherwise employ all such Updates or Upgrades as soon as practicable upon receipt or notification of the availability of the Updates or Upgrades for download.
2.5. Specific Services. Company may provide to Customer one or more written proposals, statements of work, or similar documentation setting forth the Services that Company will perform for Customer (each, a “SOW”). At any time after a SOW is executed, the parties may agree upon additional or substitute terms and specifications by executing a written change order to modify the SOW. The parties may also enter into a replacement SOW that shall supersede and take the place of a prior SOW in its entirety.
2.6. Maintenance. During the Term, Company will use commercially reasonable efforts to make the Technology Services operational and available to Client at least 95.0% of the time in any calendar month, excluding periods of Scheduled Maintenance (the “Performance Commitment”). Company will use commercially reasonable efforts to perform the Scheduled Maintenance during the period of lowest anticipated usage of the Technology Services, and to provide Client advanced notification of Scheduled Maintenance. During Scheduled Maintenance, certain components of the Technology Services may be offline, or may be operating in less redundant modes, or may be operating at reduced capacity levels. The Performance Commitment does not apply to any interruption or unavailability of a Technology Services: (i) caused by factors outside Company’s reasonable control, such as external forces affecting the reliability of the internet or any force majeure event; (ii) that results from Client’s actions or inactions or those of any employee, contractor, agent or third party acting on Client’s behalf; (iii) that results from Client’s owned, licensed, or operated information technology systems, networks, or assets or from any non-Company equipment, software or technology (other than third party equipment within Company’s direct control); (iv) Scheduled Maintenance; or (v) that results from a suspension or termination of Client’s right to use the Technology Services in accordance with this Agreement. In the event the Performance Commitment is not achieved, Company shall use best efforts to remedy the deficiency as soon as possible and to meet the Performance Commitment. The forgoing is Company’s only obligation and Client’s only remedy for Company’s failure to meet the Performance Commitment.
2.7. Support. If specified in the Order, Company may provide Client with support services related to the Technology Services (“Support Services”). In providing the Support Services described herein, Company may be required to access, perform operations on and/or in, and transmit information and data to, Client’s information technology environment, and Client hereby acknowledges and consents to Company undertaking, in Company’s sole and reasonable discretion, all of the foregoing to perform the Support Services, and Client represents and warrants to Company that it has the legal authority to consent with the same, and has procured the consent from any other applicable third party to allow Client to perform the Support Services.
3. Client Responsibilities and Restrictions
3.1. Client Responsibilities. Client is responsible for all activities conducted by it or through the accounts of its Authorized Users. Except for Company’s obligations described in Section 8 (Confidentiality), Client shall (i) have sole responsibility for the accuracy, security quality, and legality of the Client Data and the means by which Client acquired the Client Data and the right to provide the Client Data for the purposes of this Agreement (including ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Client Data for the purposes contemplated in this Agreement); (ii) be responsible for the security and confidentiality of Client’s and its Authorized Users’ account information; (iii) be responsible for maintaining a backup of all Client Data; and (iv) prevent unauthorized access to, or use of, the Technology Services, and notify Company promptly of any such unauthorized access or use. For the avoidance of doubt, the Technology Services do not replace the need for Client to maintain regular backups or redundant archives with respect to Client Data, and Company has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Client Data.
3.2. Compliance with Laws. Client shall comply with all applicable local, state, national, and foreign laws, rules, and regulations (collectively and individually, the “Laws”) in connection with its use of the Technology Services, collection and other processing of all Client Data, and performance under this Agreement, including those Laws related to employment, data privacy and protection, and international activities. Client acknowledges that Company exercises no control over the Client Data transmitted by Client or Authorized Users to or through the Technology Services. Company may impose limits on the use or access to the Technology Services as required by applicable Laws or otherwise to protect or improve the functionality, operability, or availability of the Technology Services.
3.3. Restrictions. Client and its Authorized Users shall not, and shall not permit any third party to: (i) copy or republish the Technology Services; (ii) make the Technology Services available to any person other than Authorized Users; (iii) rent, lend, sell, sublicense, or use the Technology Services to provide service bureau, timesharing or other services to third parties; (iv) send or store in the Technology Services any Sensitive Data, or connect to the Technology Services in any country that has data residency or data transmission restrictions, including, but not limited to, Russia and the People’s Republic of China; (v) send or store viruses, spyware, ransomware, timebombs, Trojan horses, or other harmful or malicious code, or files to or in connection with the Technology Services; (vi) send or store infringing, offensive, harassing or otherwise unlawful material in connection with the Technology Services; (vii) modify or create derivative works based upon the Technology Services or Documentation; (viii) remove, modify, or obscure any copyright, trademark, or other proprietary notices contained in the Technology Services or Documentation; (ix) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code used or embodied in the Technology Services, which for the avoidance of doubt includes the related algorithms, methods, and techniques; (x) access or use the Technology Services or Documentation in order to build a similar or competitive product, or (xi) exploit the Technology Services or Documentation in any unauthorized way whatsoever, including by trespassing or burdening network capacity. If for some reason these restrictions are prohibited by applicable law or by an agreement Company has with one of its licensors, then the activities are permitted only to the extent required to comply with such law or agreement.
3.4. Internet Connectivity. Client acknowledges and agrees that access to, and use of, the Technology Services requires an Internet connection for which Client is solely responsible. Client is solely responsible for payment of any third party fees associated with Client’s Internet connection, including but not limited to internet service provider or airtime charges. The operation of the Technology Services may be limited or restricted depending on the capabilities, bandwidth, or technical limitations of Client’s Internet connection and service. Client further understands, acknowledges and agrees that Internet connectivity in relation to the Technology Services is provided by third parties over which Company has no control, and is governed by the respective terms of such third parties. The provision, quality, availability and security of such Internet connectivity, software and services are the sole responsibility of such third party.
4. Intellectual Property; Data Rights
4.1. Ownership and Reservation of Rights of Company IP. Company, and its Affiliates and its licensors, own and, except for the limited rights expressly granted to Client under this Agreement, retain all right, title, and interest in and to Company IP, including, for the avoidance of doubt, the Technology Services, Documentation and any other materials provided by Company or its licensors under this Agreement, including all modifications and derivative works related thereto and intellectual property rights therein. No rights are granted to Client under this Agreement other than expressly set forth in this Agreement.
4.2. Rights in Client Data. As between Company and Client, Client owns the Client Client hereby grants and agrees to grant to Company and its Affiliates a worldwide, nonexclusive, transferable, sublicensable, royalty-free license to host, copy, transmit, display, and process the Client Data as reasonably necessary to (i) provide the Technology Services to Client and (ii) monitor, modify, and improve (including develop) the Technology Services.
4.3. Feedback. To the extent Client or any of its Authorized Users provides any suggestions for modification or improvement or other comments, code, information, know-how, or other feedback (whether in oral or written form) relating to the Technology Services or Company’s business operations (“Feedback”), Client hereby grants to Company a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use and commercially exploit the Feedback in any manner Company sees fit without accounting or other obligation.
4.4. Statistical Usage Data. Company may collect, retain, and use, during and after the Term for purposes of Company’s business, usage data that is derived from the operation of the Technology Services, including patterns identified through the use of the Technology Services and algorithms, log data, and data regarding the performance and availability of the Technology Services (“Usage Data”). If Company provides Usage Data to any third party (for example, a report on the aggregate number of identities governed with Company’s Technology Services), such Usage Data shall be aggregated and anonymized so as not to disclose Client’s or any Authorized Users’ identity.
5. Order and Payment
5.1. Orders. Client may purchase Technology Services by either entering into an Order with Company, provided each Order shall be signed by both Client and Company or issued by Company and acknowledged by Client via the issuance of a purchase order that incorporates by reference the applicable Order and subsequently accepted by Company. All Technology Services purchased by Client shall be governed exclusively by this Agreement and, subject to Section 12.5 of this Agreement, the applicable Order.
5.2. Fees; Invoicing and Payment. Unless otherwise provided in the Order, Company shall invoice Client for all fees described therein on or promptly following the effective date of the Order. Client shall pay all invoices (except to the extent of any charges then under reasonable and good faith dispute) within sixty (60) days from date of invoice. Except as expressly provided otherwise herein, fees are non-refundable, non-cancellable and not subject to set-off. All fees shall be paid by the Client in U.S. dollars ($). If any fees (except with respect to charges then under reasonable and good faith dispute) remain unpaid by their due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) Company reserves the right to suspend the Technology Services upon thirty (30) days written notice to Client until such amounts are paid in full, and (ii) any such unpaid fees may accrue, at Company’s discretion, interest at the rate of the lesser of one and one-half (1.5%) percent of the outstanding balance per month or the maximum rate permitted by law from the date such fees were due until the date paid. Further, Client shall be responsible for all costs and expenses associated with Company’s collection of such fees, including reasonable attorneys’ fees Company may incur in connection with such collection efforts. Suspension of the Technology Services under this section shall not release Client of its payment obligations under this Agreement.
5.3. Expenses. Unless otherwise specified in an Order, Client will reimburse Company for all pre-approved, out-of-pocket travel and related expenses incurred in performing the Technology Services. Company will include reasonably detailed documentation of all such expenses with each related invoice.
5.4. Taxes. Client is responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Client’s purchase and use of the Technology Services, excluding taxes based on Company’s net income. If Company has a legal obligation to pay or collect taxes for which Client is responsible under this Agreement, the appropriate amount shall be computed based on Client’s address listed in the Order and invoiced to and paid by Client, which amounts are in addition to the fees for the Technology Services, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.Term and Termination
6.1. Term. The term of this Agreement shall begin on the date that Client enters into an Order pursuant to Section 5.1 (the “Effective Date”) and continues until the stated Term in all Orders has expired or has otherwise been terminated. This Agreement may be terminated at any time by mutual written agreement of Company and Client.
6.2. Termination for Material Breach. Either party may terminate this Agreement if the other party fails to cure any material breach within thirty (30) days after receipt of written notice of such breach. Upon any termination of this Agreement by Client for a material breach by Company pursuant to this Section 6.2, Company will refund Client a pro-rata portion of any prepaid fees paid by Client to Company that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid fees paid by Client for the Technology Services that address the Technology Services that have not been delivered as of the effective date of termination. Further, Client will refund Company the portion of any unpaid fees due for Technology Services already provided by Company prior to the effective date of termination.
6.3. Suspension. Company reserves the right to suspend delivery of the Technology Services if Company reasonably concludes that Client’s or an Authorized User’s use of the Technology Services is causing immediate and ongoing harm to Company or the security, integrity, or availability of the Technology Services. Company will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to such suspension. In the extraordinary case that Company must suspend delivery of the Technology Services, Company shall promptly notify Client of the suspension and the parties shall diligently attempt to resolve the issue. Company shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Technology Services in accordance with this Section 6.3. Nothing in this Section 6.3 will limit Company’s other rights under this Section 6.
6.4. Retrieval of Client Data. Upon request by Client made at least thirty (30) days prior to the termination of this Agreement, Company will make available to Client, at no cost, for a maximum of thirty (30) days following such termination for download a file of the Client Data then-currently stored and available for retrieval in the Technology Services (“Client Content”). After such thirty (30)-day period, Company shall have no obligation to maintain or provide any such stored and available Client Content and shall thereafter be entitled to delete all Client Content; provided, however, that Company will not be required to remove copies of the Client Content from its backups until such time as the backup copies are scheduled to be deleted in the normal course of business; provided further that in all cases Company will continue to protect the Client Content in accordance with Section 8 (Confidentiality).
6.5. Effect of Termination. Upon expiration or termination of this Agreement, all licenses to the Required Software and access to the Technology Services granted to Client under this Agreement and all Orders placed hereunder shall immediately terminate and Client will cease using the Technology Services, (except as permitted under Section 6.4 (Retrieval of Client Content)) and Company Confidential Information. Expiration or termination of this Agreement for any reason other than termination by Client for a material breach by Company pursuant to Section 6.2 (Termination for Material Breach) shall not relieve Client of the obligation to pay all future amounts due under all Orders. Sections 3.3 (Restrictions), 4 (Intellectual Property), 5.2 (Fees; Invoicing and Payment), 6.5 (Effect of Termination), 7 (Representations and Warranties), 8 (Confidentiality), 10 (Indemnification), 11 (Limitations of Liability) and 12 (Miscellaneous) shall survive the expiration or termination of this Agreement for any reason.
7. Representations and Warranties
7.1. General. Each party represents and warrants that it has the legal power and authority to enter into and perform under this Agreement, and shall comply with all Laws applicable to it under this Agreement.
7.2. TECHNOLOGY SERVICES. Client ACKNOWLEDGES AND AGREES THAT THE TECHNOLOGY SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT (NOT LIMITED TO) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED. Client ACKNOWLEDGES AND AGREES THAT THE TECHNOLOGY SERVICES MAY NOT MEET CLIENT’S REQUIREMENTS AND MAY NOT BE COMPATIBLE WITH ANY PARTICULAR INFORMATION SYSTEM. Client FURTHER ACKNOWLEDGES AND AGREES THAt THE OPERATION OF THE TECHNOLOGY SERVICES MAY NOT BE UNINTERRUPTED AND MAY CONTAIn ERRORS, BUGS, AND OTHER GLITCHES THAt MAY NOT BE CORRECTED. THE TECHNOLOGY SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, VIRUSES, LOSS OR COMPROMISE TO CLIENT DATA, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE ENTIRE RISK AS TO THE USE OF THE TECHNOLOGY IS ASSUMED BY CLIENT.
7.3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY OF INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT OR OTHERWISE WITH RESPECT TO THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. COMPANY MAKES NO WARRANTY REGARDING ANY NON-COMPANY APPLICATION WITH WHICH THE SERVICES MAY INTEROPERATE. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LIMITED WARRANTIES PROVIDED IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
8. Confidentiality
8.1. Definitions. As used in this Agreement, “Confidential Information” means all proprietary, non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, which, (i) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the Receiving Party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, or (iii) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself, including the terms of this Agreement and each Order, the Technology Services, and Documentation. The term “Confidential Information” does not include information that: (i) is known publicly at the time of the disclosure by the Disclosing Party or becomes known publicly after disclosure through no fault of the Receiving Party; (ii) is known to the Receiving Party at the time of disclosure by the Disclosing Party due to previous receipt from a source that was not bound by confidentiality obligations to the Disclosing Party at that time; or (iii) is independently developed by the Receiving Party without use of or reference to the Confidential Information as demonstrated by the written records of the Receiving Party. For the avoidance of doubt, Client Data shall be subject to the confidentiality and security rules set forth in Section 9 (and not the confidentiality and security rules set forth in this Section 8).
8.2. Obligations of Confidentiality. The Receiving Party shall not (i) use the Confidential Information of the Disclosing Party except to exercise its rights and perform its obligations under this Agreement or (ii) disclose such Confidential Information to any third party, except those of its employees, service providers, agents, and representatives who are subject to confidentiality obligations at least as stringent as the obligations set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. The Receiving Party shall use at least the same degree of care it uses to protect its own confidential information of like nature, but not less than a reasonable degree of care, to protect the Confidential Information of the Disclosing Party.
8.3. Permitted Disclosures. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by law or order of a court or other governmental authority; provided that the Receiving Party shall use commercially reasonable efforts to promptly notify the Disclosing Party prior to such disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
9. Information Security and Data Protection
9.1. Company Security Program. Company will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Client Data, including measures designed to prevent unauthorized access, use, modification, or disclosure of Client Data. Company will, to the extent required by law, promptly notify Client in the event it identifies any compromise to the security or confidentiality of Client Data.
9.2. Authorized User Security Controls. Client is solely responsible for all actions taken by its Authorized Users and for maintaining the security and confidentiality of all usernames, passwords, and access credentials provided to, or generated by, an Authorized User. Client agrees to notify Company immediately of any unauthorized use of any username, password, access credentials, or account related to the Technology Services, or of any other known or suspected breach of security. For the avoidance of doubt, Client shall not provide or otherwise input into the Technology Services any Sensitive Data. Client hereby agrees that Client is solely responsible for reviewing and ensuring Client Data does not contain Sensitive Data. Notwithstanding anything in this Agreement to the contrary, Client will defend, indemnify and hold harmless Company and its Affiliates against any and all claims of third parties which are in any manner related to the processing and/or storing of Sensitive Data.
10. Indemnification. Client shall indemnify, defend and hold harmless Company and its Affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, in connection with, or related to (i) a breach of this Agreement by Client, or any employee or agent of Client; (ii) any and all acts and omissions of Client and its employees and agents in connection with its use of the Technology Services; (iii) the provision or use of Client Data, or (iv) the violation, infringement or misappropriation by Client, or any employee or agent of Client, of the intellectual property rights of Company.
11. Limitations of Liability
11.1. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT UNDER THE ORDER GIVING RISE TO THE CLAIM FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY.
11.2. EXCLUSIONS. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTION 11.1, (A) NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY FOR: (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (INDEMNIFICATION); (II) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (III) CLIENT’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND (B) IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING (BY WAY OF EXAMPLE AND NOT AN EXHAUSTIVE LIST), LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF USE, OR OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, EXCEPT TO THE EXTENT SUCH DAMAGES RESULT FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
11.3. ACKNOWLEDGMENT OF RISK. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN ARE REFLECTED IN THE PRICING OF THE SERVICES OFFERED BY COMPANY AND AGREED UPON BY CLIENT AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAINING BETWEEN THE PARTIES.
12. Miscellaneous
12.1. Assignment. Neither party may assign this Agreement or otherwise transfer any right or obligation under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety to an acquirer of all or substantially all of the assets or equity of such party to which this Agreement relates, whether by merger, asset sale, or otherwise so long, in the event of an assignment by Client, as all fees then due and payable to Company have been paid. Any attempt by a party to assign or transfer its rights or obligations under this Agreement other than as permitted by this Section 12.1 shall be void and of no effect. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Company may employ subcontractors in performing its duties under this Agreement.
12.2. Notices. Except as otherwise expressly permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (i) five (5) business days after mailing if sent by registered or certified U.S. mail, (ii) when personally delivered, or (iii) one (1) business day after deposit for overnight delivery with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
12.3. Force Majeure Event. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented, delayed or restricted by reasons beyond the reasonable control of a party, including acts of God, pandemic, labor disputes or other industrial disturbances, fire, explosion, electrical or power outages, utilities or other telecommunications failures, earthquake, flood, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism (including cyber terrorism), war, computer related attacks or hacking, acts or omissions of Internet traffic carriers, acts or omissions of regulatory or governmental bodies (including the passage of regulations or other acts of government that impact the provision of the Technology Services) (each, a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention, delay or restriction.
12.4. Equitable Relief. The parties agree that a material breach by Client of Section 8 (Confidentiality) or Section 3.3 (Restrictions) would cause irreparable injury to Company for which monetary damages alone would not be an adequate remedy, and therefore Company shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
12.5. Entire Agreement. This Agreement, together with any documents incorporated herein by reference, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous oral and written communications, representation, understandings, and agreements by the parties concerning the subject matter of this Agreement. No terms, provisions or conditions contained in any purchase order, sales confirmation, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights or obligations of the parties under, or otherwise modify, this Agreement. If there is any conflict between the terms of this Agreement and any Order, the terms of this Agreement shall control, unless Company and Client expressly agree otherwise in the applicable Order or other document signed by both parties by specific reference to this Section and the Section(s) of this Agreement that are modified. Where Company is required to “click through” or otherwise accept any online terms as a condition to its provision or receipt of Technology Services, such terms are not binding and shall not be deemed to modify this Agreement. Company reserves the right to change or modify the terms of this Agreement, in whole or in part, at any time in its sole discretion upon notice to Client by electronic means, including by the posting of the updated Agreement to the Company’s website [https://www.ljbinc.com], and Client is responsible for periodically reviewing this Agreement and Company’s website to identify any modifications hereto and to fully comply with the same. Any changes or modifications to this Agreement will be effective immediately upon the posting of the revisions to the Company’s website and Client waives any right to receive specific written notice of such changes. Client’s continued use of the Technology Services following the posting of revised terms and conditions to the Company’s website constitutes Client’s acceptance of the changes. Notwithstanding the foregoing, Client may terminate this Agreement by providing written notice to Company at any time within 30 days of the effective date of the change if it does not agree with any changes.
12.6. Publicity. During the term of this Agreement, Company may include Client’s name and logo in its customer lists, including on its website. To the extent Client provides standard trademark usage guidelines, Company shall use Client’s name and logo in accordance with such guidelines.
12.7. Government End Authorized User. If Client is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (“FAR”), Client acknowledges that elements of the Technology Services constitute software and documentation and are provided as “Commercial Items” and are being licensed to U.S. Government End Authorized User as “Commercial Computer Software,” in each case as defined in 48 C.F.R. 2.101, subject to the restrictions set forth in 48 C.F.R. 12.201, 12.211 and 12.212 and the terms of this Agreement. If licensed to any agency within the Department of Defense (“DOD”), the U.S. Government acquires a license to this Commercial Computer Software and/or Commercial Computer Software Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3, and the restrictions set forth therein, of the DOD FAR Supplement (“DFARS”) and its successors. The use of the Technology Services by the U.S. Government End Authorized User constitutes acknowledgement of Company’s proprietary rights in the Technology Services and the Government End Authorized User shall only use the Technology Services as set forth in this Agreement. This Government End Authorized User Section 12.7 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.8. Domestic Use. Client agrees to only use, and shall ensure each Authorized User only uses, the Technology Services from within the United States of America.
12.9. Independent Contractors, No Third-Party Beneficiaries. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel. There are no third-party beneficiaries under this Agreement.
12.10. Governing Law, Attorneys’ Fees, and Severability. This Agreement is governed by the laws of the State of Ohio, excluding any of its conflict of law principles that would apply laws of another jurisdiction, and the exclusive venue for any dispute relating to this Agreement shall be the courts located in Cleveland, Ohio. In any court action at law or equity, which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed.
12.11. Anti-Bribery/Corruption. Neither party (i) has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement or (ii) has made, paid, given, or agreed to make, pay, or give any bribe, kickback, payment, gift, or thing of value to any foreign government official or other person in violation of applicable Law related to the prevention of corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended (“Anti-Corruption Laws”) in connection with this Agreement Both parties agree to comply with Anti-Corruption Laws in relation to this Agreement. If either party learns of any violation of the foregoing restriction, such party will use reasonable efforts to promptly notify the other party.
12.12. Interpretation. For purposes of interpreting this Agreement, (i) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (ii) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (iii) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (iv) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (v) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.