These Master Services Terms and Conditions (“Terms”) are incorporated into each Order Form executed by the entity signing the Order Form (“Customer”) with OpenEnvoy, Inc. (“OpenEnvoy”). By executing the Order Form, Customer agrees to these Terms. Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the Order Form.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or Authorized Users to access the Subscription Service.
1.2 “Affiliate” means any individual, corporation, partnership, limited liability company, or other entity that directly or indirectly, controls, or is controlled by, or is under common control with, a party. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of any such entity or organization, whether through the ownership of securities, by contract, or otherwise.
1.3 “Agreement” means these Terms, any Order Form referencing these Terms, and any other schedules, supplements, statements of work, exhibits, or appendices thereto, whether attached or incorporated by reference. These Terms will apply to all Order Forms issued hereunder.
1.4 “Applicable Laws” means all laws, regulations, standards, and self-regulatory guidelines relating to privacy, data protection, security, breach notification, consumer protection, or the Processing of Personal Data that may apply to Customer or OpenEnvoy, as applicable. Applicable Laws include but are not limited to the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 – 1798.199) and the General Data Protection Regulation (Regulation (EU) 2016/679).
1.5 “Authorized User” means any individual who is an employee or contractor of Customer or Affiliate of Customer authorized by Customer to access the Subscription Service pursuant to Customer’s rights under these Terms.
1.6 “Documentation” means the technical materials and documentation made available by OpenEnvoy in electronic form describing the use and operation of the Subscription Service.
1.7 “DPA” means the OpenEnvoy Data Processing Addendum, including the Standard Contractual Clauses and appendices in effect at https://www.OpenEnvoy.com/data-processing-addendum/ on the Order Start Date of the initial Order Form.
1.8 “Error” means a reproducible failure of the Subscription Service to substantially conform to the Documentation.
1.9 “Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights available under applicable law, including all rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, algorithms, and databases.
1.10 “Order End Date” means the date on the Order Form indicating when the Subscription Service will end.
1.11 “Order Form” means all written order forms or other ordering documentation signed by Customer and accepted by OpenEnvoy referencing these Terms and identifying the applicable Services to be made available by OpenEnvoy, fees, Subscription Term, and other terms and conditions applicable to the Services.
1.12 “Order Start Date” means the date on the Order Form indicating by when OpenEnvoy will provide the Access Protocols to Customer.
1.13 “Output Values” means the output values, which will include without limitations the risk results from Processing the Raw Data through the Subscription Service. Output Values exclude Raw Data.
1.14 “Personal Data” means any information relating to an identified or identifiable individual, unless Applicable Laws provide for a different definition for “Personal Data” or a similar term, like personal information, in which case “Personal Data” has the meaning set forth by the Applicable Laws.
1.15 “Process” and “Processing” mean any operation or set of operations performed on Raw Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.16 “Raw Data” means any information provided or transmitted by Customer or on behalf of Customer to the Subscription Service. For the avoidance of doubt, “Raw Data” includes Personal Data.
1.17 “Services” means the Subscription Service, Documentation, support service, implementation service, and any related services agreed by the parties in an Order Form or Statement of Work.
1.18 “Statement of Work” means a description of the implementation service that includes the scope of the service, timeline, responsibilities and fees.
1.19 “Subscription Service” means the software as a cloud service identified in an Order Form, including the OpenEnvoy platform and its proprietary machine learning algorithms, hosted on OpenEnvoy’s servers or those of its hosting services providers, accessed and used by Customer via the worldwide web.
1.20 “Subscription Term” means the duration when the Subscription Service will be made available to Customer, as indicated by the Order Start Date and the Order End Date.
1.21 “Will” means having the duty or obligation to perform.
2.1 Provision of the Subscription Service. Subject to Customer’s payment of the fees set forth in the Order Form, OpenEnvoy will provide the Subscription Service via an online user interface specified in the Documentation. On or before the Order Start Date, OpenEnvoy will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Subscription Service. Customer may permit Authorized Users to access and use the features and functions of the Subscription Service as contemplated by this Agreement. OpenEnvoy will, at its expense, host the Subscription Service on servers operated and maintained by or at the direction of OpenEnvoy. OpenEnvoy will provide new releases and updates to the Subscription Service that it generally provides to its other customers, provided that OpenEnvoy will not be obligated to provide to Customer any new release or update to the Subscription Service, or any module thereof, for which OpenEnvoy generally charges a separate fee.
2.2 Restrictions. With respect to the Subscription Service, Customer will not (and will not permit others to): (a) use it in excess of contractual usage limits (including as set forth in an Order Form), or in a manner that circumvents usage limits or technological access control measures; (b) license, sub-license, sell, resell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may otherwise be expressly stated in an Order Form; (c) access it for the purpose of developing or operating products or services for third-parties in competition with the Subscription Service or OpenEnvoy; (d) disassemble, reverse engineer, or decompile it; (e) copy, create derivative works based on, or otherwise modify it, except as provided by law, in which case Customer will provide prior written notice to OpenEnvoy before taking such action; (f) remove or modify a copyright or other proprietary rights notice in it; (g) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other Intellectual Property Right (including the rights of publicity) without first obtaining permission of the owner; (h) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; or (i) access or disable any OpenEnvoy or third-party data, software, or network (other than Customer’s instance of the Subscription Service under this Agreement).
2.3 Data Security. OpenEnvoy will maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Raw Data under these Terms.
(a) Breach Notification. OpenEnvoy will promptly without undue delay notify Customer in the event of an unauthorized access or disclosure of Raw Data. OpenEnvoy will not notify, for or on behalf of Customer (or any Authorized User), any regulatory authority, consumer or other person of unauthorized access or disclosure to Raw Data unless Customer explicitly requests in writing that OpenEnvoy do so.
(b) Security Standards. OpenEnvoy is certified as ISO27001:2013 and SSAE 18, Type 2 SOC 2 compliant as of the Effective Date and will remain certified to these or equivalent or greater standards (the “ISMS Standards”) throughout the term of this Agreement. Upon Customer’s written request, OpenEnvoy will provide its certificate of registration which states its conformance with the requirements of ISO 27001:2013 and independent auditor’s summary report of OpenEnvoy’s controls under a Type 2 SOC 2 examination. OpenEnvoy will maintain appropriate administrative, physical and technical safeguards according to the ISMS Standards. These safeguards will include, but not be limited to, measures designed to prevent unauthorized access to or disclosure of Raw Data.
(c) EU-US and Swiss-US Privacy Shield. OpenEnvoy acknowledges that it may receive or have access to Personal Data provided by Authorized Users during the term of this Agreement. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom or Switzerland are processed by OpenEnvoy, the EU-US and/or Swiss-US Privacy Shield Framework, as applicable, and/or the Standard Contractual Clauses will apply, as further set forth in the DPA. Where the Standard Contractual Clauses are applicable, Customer is the data exporter, and Customer’s acceptance of this Agreement and execution of an Order Form, will be treated as its execution of the DPA and OpenEnvoy is the data importer, and OpenEnvoy’s acceptance of this Agreement and execution of an Order Form, will be treated as its execution of the DPA.
2.4 Provision of Implementation Service and Support Service. Subject to Customer’s payment of implementation service fees set forth in the Order Form, OpenEnvoy will help Customer input its Raw Data into the Subscription Service, configure the learning algorithm in the Subscription Service to learn Customer’s risk parameters, and provide other services pursuant to a mutually agreed upon Statement of Work. Subject to Customer’s payment of applicable support fees stated on the Order Form, OpenEnvoy will provide Customer with the support service in accordance with the Support Data Sheet referenced in the Order Form.
3.1 Responsibilities of Customer. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any Authorized User to access the Subscription Service from the Internet. Customer and its Authorized Users will have access to the Raw Data and will be responsible for all changes to and/or deletions of Raw Data. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service, safeguard the Access Protocols, and notify OpenEnvoy promptly of any such unauthorized use known to Customer. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Raw Data. Customer acknowledges and agrees that the Subscription Service will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer represents and warrants that any Raw Data submitted to the Subscription Service will not (a) infringe or misappropriate any Intellectual Property Rights of any person; (b) be deceptive, defamatory, obscene, or unlawful; or (c) contain any viruses, worms or other malicious computer programming codes intended to damage OpenEnvoy’s systems or data. OpenEnvoy will have the right to review and monitor all use of the Subscription Service to ensure compliance with the terms and conditions of this Agreement.
(a) PHI Data under HIPAA. Customer will not include in Raw Data any PHI unless Customer has entered into an Order Form that explicitly permits Customer to process PHI in the Subscription Service and a Business Associate Agreement with OpenEnvoy, which upon mutual execution, will be incorporated by reference into and subject to this Agreement. “PHI” means personal health information regulated by the Health Insurance Portability and Accountability Act of 1996.
(b) Cardholder Data under PCI-DSS. Customer will not include in Raw Data any cardholder data as defined under the Payment Card Industry Data Security Standard.
3.2 Raw Data and Trademarks. Customer grants OpenEnvoy a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Raw Data as necessary for purposes of providing the Services and enabling the operation of the Subscription Service, and (b) to use the Customer’s trademarks, service marks, and logos (“Trademarks”) as required to provide the Services. The Raw Data and Customer’s Trademarks and all worldwide Intellectual Property Rights therein, as between OpenEnvoy and Customer, are the exclusive property of Customer. All rights in and to the Raw Data and Trademarks not expressly granted to OpenEnvoy in this Agreement are reserved by Customer.
3.3 Compliance with Applicable Laws. Customer represents and warrants: (A) that its use of the Subscription Service will comply with Applicable Laws; (B) Raw Data will not contain (i) any data for which Customer does not have all rights, power, and authority necessary for its collection, use, and Processing as contemplated by this Agreement; or (ii) any data with respect to which Customer’s usage as contemplated herein would violate Applicable Laws; and (C) OpenEnvoy’s processing of Raw Data as directed pursuant to this Agreement will not cause OpenEnvoy to violate Applicable Laws.
4.1 License Grant to Customer. Subject to the terms and conditions of this Agreement, OpenEnvoy grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 12.7), worldwide license during the term of this Agreement, without the right to sublicense, solely for Customer’s internal business purposes, (a) to access, use, perform, and digitally display the Subscription Service in accordance with the Documentation; and (b) to use and download a reasonable number of copies of the Documentation.
4.2 Ownership of the Services. The Services and all worldwide Intellectual Property Rights in each of the foregoing including any updates, upgrades, improvements, configurations, extensions, and derivative works developed during the term of this Agreement or otherwise, are the exclusive property of OpenEnvoy and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof.
4.3 Output Values; Usage Data; Aggregated Data; Customer Feedback.
(a) Output Values. In the course of using the Subscription Service, certain Output Values will be created by the Subscription Service. For the avoidance of doubt, OpenEnvoy owns all the Intellectual Property Rights in the Output Values and the underlying Intellectual Property Rights to generate such Output Values. OpenEnvoy grants to Customer a non-exclusive, royalty-free, non-transferable (except as set forth in Section 12.7 (Assignment)), non-sublicensable worldwide license to use the Output Values in connection with the Subscription Service as contemplated under this Agreement during the applicable Subscription Term. Nothing in this Agreement will be deemed to restrict or limit OpenEnvoy’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Services.
(b) Usage Data; Aggregated Data. Pursuant to Section 3.2, Customer agrees that OpenEnvoy may input Raw Data into the OpenEnvoy machine learning algorithms (“MLA”) to enable OpenEnvoy to provide the Subscription Service to Customer and to improve the MLA to fine tune its risk assessing capability in providing the Output Values. Furthermore, Customer agrees that OpenEnvoy may use Customer’s Raw Data in a de-identified format in combination with other customers’ de-identified Raw Data (“Aggregated Data”) to provide the Subscription Service to Customer and OpenEnvoy’s other customers and to improve the MLA for all customers. OpenEnvoy may (during and after the term of this Agreement) (i) use Usage Data and Aggregated Data to improve and enhance the Subscription Service and for other development, diagnostic, and corrective purposes in connection with the Subscription Service and any other OpenEnvoy offerings, and (ii) disclose Usage Data and Aggregated Data only in de-identified form in connection with its business. “Usage Data” means usage data and telemetry regarding Authorized Users’ use of the Subscription Service and other information relating to the provision, use, and performance of various aspects of the Subscription Service and related systems and technologies.
(c) Customer Feedback. OpenEnvoy encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Subscription Service (collectively, “Feedback”). If Customer provides such Feedback, Customer grants to OpenEnvoy a royalty-free, fully paid, sublicensable, transferable (notwithstanding Section 12.7 (Assignment)), non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of such Feedback into any OpenEnvoy products or services) without restriction.
5.1 Services. Customer may engage OpenEnvoy to provide on-site installation, configuration, or training Services at a fee stated on the Order Form. Customer agrees to pay OpenEnvoy for reasonable pre-approved out-of-pocket expenses (including travel and living) incurred by OpenEnvoy in performing its obligations for such Services. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer. Terms regarding the delivery of the implementation service, if applicable, will be set forth in an Order Form or a Statement of Work.
5.2 Onsite Policies. If in the course of providing the implementation service or any other OpenEnvoy services, OpenEnvoy personnel go onsite to Customer’s premises, OpenEnvoy will require such personnel to comply with OpenEnvoy’s commercially reasonable onsite access policies that have been provided by Customer to such personnel reasonably in advance.
6.1 Fees. In consideration for the Services, Customer will pay to OpenEnvoy the fees set forth in the Order Form in US Dollars. Subscription Service and support fees are invoiced annually in advance. Implementation Service fees are invoiced on a time and materials basis, monthly in arrears, unless stated otherwise in the Order Form or Statement of Work, Prices stated in each Order Form are final. The Subscription Term, as set forth in each Order Form, is a non-divisible and continuous commitment, regardless of the invoice or payment schedule, and pricing is based on the purchase of the entire Subscription Term. Upon execution by Customer and OpenEnvoy, each Order Form is noncancelable and non-refundable, except as provided in this Agreement. All undisputed amounts payable to OpenEnvoy under this Agreement will be due thirty (30) days after the applicable invoice date. OpenEnvoy will be entitled to withhold performance and discontinue the Services until any past due amount is paid in full. Any undisputed amounts not paid when due will bear interest at the rate of one percent (1%) per month, or the maximum rate allowed under applicable law, whichever is less.
6.2 Taxes. The fees are exclusive of all applicable sales, use, withholding, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges. Customer will be responsible for payment of all taxes (other than taxes based on OpenEnvoy’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the use of the Subscription Service by Customer. Customer will make all payments of fees to OpenEnvoy free and clear of, and without reduction for, any withholding taxes, where applicable. Any such taxes imposed on payments of fees to OpenEnvoy will be Customer’s sole responsibility, and Customer will provide OpenEnvoy with official receipts issued by the appropriate taxing authority, or such other evidence as OpenEnvoy may reasonably request to establish that such taxes have been paid.
6.3 Use Verification. OpenEnvoy may remotely review Customer’s use of the Subscription Service, and on OpenEnvoy’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement, and access to and use of the Subscription Service. If OpenEnvoy determines that Customer has exceeded its permitted access and use rights to the Subscription Service, OpenEnvoy may notify Customer of any actual or potential overage by Customer. In the event of an overage, Customer agrees to either, (a) purchase additional licenses necessary to cover the overage at the rate of one-hundred and fifty percent (150%) of the subscription fee rate paid during the current Subscription Term, or (b) increase the licenses purchased necessary to cover the overage in blocks equal to ten percent (10%) of the total number of licenses purchased for the current Subscription Term at the fee rate in the current Order Form. Option (b) must be exercised within 30 days of an overage and not later than the expiration of the Subscription Term in which the overage occurred.
7.1 Limited Warranty. OpenEnvoy warrants to Customer that the Subscription Service will operate free from Errors during the term of the Agreement and Services will be performed in a good and workmanlike manner. The foregoing warranty will not apply to performance issues of the Subscription Service (a) that result from any actions or inactions of Customer or any third parties as a violation of this Agreement or the Documentation; (b) that result from Customer’s data structures, operating environment, or equipment; or (c) caused by other factors outside of OpenEnvoy’s reasonable control. Provided that Customer notifies OpenEnvoy in writing of any breach of the foregoing warranty during the term of this Agreement, OpenEnvoy will, as Customer’s sole and exclusive remedy for any Errors with the operation of the Subscription Service, (i) provide the OpenEnvoy technical support services to correct such Error(s), or (ii) if OpenEnvoy is unable to correct such Error(s) within a commercially reasonable amount of time, elect to terminate this Agreement and refund to Customer the prepaid fees covering that part of the applicable Subscription Term for the affected Subscription Service remaining after the effective date of termination.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OpenEnvoy MAKES NO OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES PROVIDED TO CUSTOMER BY OpenEnvoy. OpenEnvoy DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
8.2 Amount of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR OWED BY CUSTOMER TO OpenEnvoy DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.
8.3 Exclusions. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR ITS INDEMNIFICATION LIABILITY ARISING UNDER SECTION 10, INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, RECKLESS OR INTENTIONAL MISCONDUCT, DEATH OR PERSONAL INJURY, OR OBLIGATION TO PAY FOR THE FEES OWED HEREUNDER.
8.4 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, the Subscription Service, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of OpenEnvoy, and the Raw Data will be considered Confidential Information of Customer.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement. The obligation to return or destroy Confidential Information or copies thereof will not extend to automatically generated computer back-up or archival copies generated in the ordinary course of the Receiving Party’s information systems procedures, provided that such archived copy will (i) be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) will remain fully subject to the obligations of confidentiality stated herein.
9.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.1 By OpenEnvoy. OpenEnvoy will defend at its expense any third party suit brought against Customer, and will pay any settlement OpenEnvoy makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Subscription Service infringes or misappropriates any Intellectual Property Rights of any third party. If any portion of the Subscription Service becomes, or in OpenEnvoy’s opinion is likely to become, the subject of a claim of infringement, OpenEnvoy may, at OpenEnvoy’s option: (a) procure for Customer the right to continue using the Subscription Service; (b) replace the Subscription Service with a non-infringing, substantially similar subscription service; (c) modify the Subscription Service so that it becomes non-infringing; or (d) terminate this Agreement and refund to Customer the prepaid fees covering that part of the applicable Subscription Term for the affected Subscription Service remaining after the effective date of termination, and upon such termination, Customer will immediately cease all use of the Subscription Service. Notwithstanding the foregoing, OpenEnvoy will have no obligation under this section or otherwise to the extent any infringement claim is based upon (w) any use of the Subscription Service not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Subscription Service in combination with other products, equipment, software or data not supplied or recommended by OpenEnvoy; (y) any modification of the Subscription Service by any person other than OpenEnvoy or its authorized agents; or (z) modification of the Subscription Service based upon specifications furnished by Customer. This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of OpenEnvoy, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 10.1.
10.2 By Customer. Customer will defend at its expense any third party suit brought against OpenEnvoy, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to Customer’s breach or alleged breach of Section 2.2 or 3.1. This Section 10.2 states the sole and exclusive remedy of OpenEnvoy and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 10.2.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11.1 Term. This Agreement commences on the Effective Date and remains in effect until the Order End Date in the last issued Order Form unless earlier terminated as set forth below. This Agreement shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least sixty (60) days prior to the expiration of the then-current term. Unless otherwise stated in the Order Form, the per-unit pricing for any automatic renewal term will increase by no more than 8% of the per-unit pricing for the applicable Subscription Service in the immediately prior Subscription Term.
11.2 Termination. Either party may terminate this Agreement immediately following notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured for thirty (30) days after delivery of written notice of such breach. Implementation service is separately ordered from the Subscription Service. A breach by a party of its obligations with respect to the implementation service will not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order Form.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, will immediately terminate (except that all payment obligations accrued prior to termination or expiration will survive and as provided for below); and (b) within ten (10) days after the effective date of termination, each party will comply with the obligations to return, destroy or erase all Confidential Information of the other party, as set forth in Section 9.2. The following sections will survive expiration or termination of this Agreement for any reason: Sections 1, 4.2, 4.3, 6, 8, 9, 10, 11, and 12. OpenEnvoy will, within 30 days after the effective date of termination by Customer for OpenEnvoy’s breach, refund to Customer any prepaid fees received by OpenEnvoy covering that part of the Subscription Term for the affected Subscription Service, if any, remaining after the effective date of termination. Within 30 days after the effective date of termination by OpenEnvoy for Customer’s breach, Customer will pay all remaining amounts, if any, payable under this Agreement for the Subscription Term applicable to the terminated Subscription Service regardless of the due dates specified in the current Order Forms. Customer may within thirty (30) days of termination of the Agreement, request OpenEnvoy, by submitting a support ticket, to return Customer’s Raw Data and Output Values in its instance. Thereafter, OpenEnvoy will delete Customer’s instance, Raw Data, Output Values, and any other data contained in its instance.
12.1 Insurance. OpenEnvoy will for the term of the Agreement obtain and maintain with sound and reputable insurers, at its own expense, insurance coverage, in the amounts that are prudent or usual for a company conducting a business similar to OpenEnvoy, and taking into account the nature of the Services provided hereunder and the risks applicable to OpenEnvoy. Upon Customer’s written request, OpenEnvoy will promptly furnish a certificate of insurance.
12.2 Dispute Resolution. In the event of a dispute between the parties (a “Dispute”), each party will provide the other party with written notice of the Dispute as soon as practicable, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers. A Dispute that cannot be resolved within thirty (30) days following the notice of the Dispute will, upon written demand of either party, be resolved exclusively by final and binding arbitration. If both parties have headquarters in California, arbitration will be conducted exclusively in San Francisco, California. If Customer is not headquartered in California, arbitration will be conducted exclusively in New York, New York. Arbitration will be held by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect and California law applies. The arbitration will be conducted, and all evidence will be submitted in the English language. Each party will bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrators. Each party will choose one independent arbitrator. The award rendered in the arbitration will be final and binding and may be enforced in any court of competent jurisdiction. The foregoing will not apply if the Dispute involves a breach of confidentiality obligation or an infringement of the other party’s intellectual property rights. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.3 Export Compliance. Each party will comply with local and foreign export control Applicable Laws, including U.S. export control laws. Customer acknowledges that the Subscription Service is subject to U.S. Export Administration Regulations (“EAR”) and that Customer will comply with EAR. Without limiting the foregoing, Customer represents and warrants that: (a) it is not located in, and will not use any Subscription Service from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Customer will not use the Subscription Service in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Customer is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local Applicable Laws that may impact Customer’s right to import, export, or use Subscription Service.
12.4 US Government Rights. OpenEnvoy software is commercial computer software (as defined in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases) and OpenEnvoy services are commercial items. If the software is licensed or services are acquired by or on behalf of a civilian agency, OpenEnvoy provides the software, its documentation, and any other technical data subject to this Agreement consistent with FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data). If the software is licensed or services are acquired by or on behalf of any DOD agency, OpenEnvoy provides the software, its documentation, and any other technical data subject to this Agreement consistent with DFARS 227.7202-3. If this is a DOD prime contract or DOD subcontract, the DOD agency Customer may acquire additional rights in technical data under DFARS 252.227- 7015(b). This U.S. Government Rights clause 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.
12.5 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 No Assignment. Customer will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of OpenEnvoy, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of OpenEnvoy, by providing notice of the assignment as soon as practicable. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.9 Independent Contractors. Customer’s relationship to OpenEnvoy is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
12.10 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
12.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and OpenEnvoy. Customer’s orders are not contingent, and Customer has not relied on the delivery of any future functionality regardless of any verbal or written communication about OpenEnvoy’s possible future plans.