The Software consists of a software application accessed over the internet that helps businesses and other organizations automate, organize, and manage business operations. Customer and Provider agree as follows:
“Confidential Information” is defined in Section 13.
“Data” means any and all information provided by Customer related to its internal business during its use of the Software and Services.
“Software" means the computer application program(s) created by Provider and made available to Customer over the internet by Provider (and its third party providers), as more fully described in the Cohub documentation, including any related interfaces and any custom components that Provider agrees to create for Customer under the terms of a separate agreement between the parties.
“Term” is defined in Section 9.
2.1 Provider shall supply Customer with the information necessary to access the Software over the internet. Provider hereby grants to Customer, subject to the terms and conditions set forth in this Agreement, a non-exclusive, nontransferable license to use the Software for its internal data processing needs. Customer acknowledges that the Software is only being provided on a remote-hosted, software as a service (SaaS) basis. As such, Customer shall not obtain any other rights in the Software or its underlying source or object code. Customer shall not have the right to download or save the Software to any computer or storage device. It is anticipated that during the Term, Provider shall make modifications, enhancements, and improvements to the Services and shall make those available to Customer to the same extent it makes such items generally available to its other customers. However, nothing contained herein shall be construed as requiring Provider to make such modifications, enhancements, or improvements.
2.2 Provider shall provide Customer with the Services during the Term of this Agreement.
Customer acknowledges that all recommendations and feedback become the property of Provider and may be incorporated into the Services.
Customer shall promptly notify Provider of any defects or malfunctions in the Services of which it learns from any source. Notwithstanding anything to the contrary contained herein, Provider shall have the right to disclose that Customer is a user of the Services in its general list of customers, in written or electronic sales or marketing materials, and during in-person sales or marketing meetings with third parties. Customer may obtain a copy of its Data by requesting it from Provider. If Customer is provided with a user name, password, account data, or any other piece of information as part of Provider’s security procedures, Customer must treat such information as confidential, and must not disclose it to any other person or entity. Customer also acknowledges that its account is personal to Customer and agrees not to provide any other person with access to Cohub or portions of it using Customer’s user name, password, or other security information. Customer agrees to notify Provider immediately of any unauthorized access to or use of Customer’s user name or password or any other breach of security. Customer also agrees to ensure that its employees and agents exit from its account at the end of each session. Customer and its employees should use particular caution when accessing its account from a public or shared computer so that others are not able to view or record Customer’s password or other personal information.
In the unlikely event that Provider's personnel are physically on site at any Customer facility, those employees will comply with all reasonable security and privacy regulations which are provided in advance by Customer.
PROVIDER SPECIFICALLY RESERVES THE RIGHT TO CHANGE OR DELETE ANY FUNCTIONALITY OF THE SOFTWARE AT ANY TIME.
As consideration for the Software and Services, Customer shall pay Provider the fees set forth on Cohub fee schedule (or in Customer’s written agreement with Provider).
Customer is responsible for obtaining such computer equipment, internet connections, and communication links as are necessary to access the Software and use the Services. Provider has no responsibility for providing any equipment, except for its own equipment necessary to provide the Services. Customer acknowledges that the internet and telecommunications links are both subject to periodic outages and failures. Provider has no responsibility for and makes no warranty of any kind related to the availability or operation of the internet or any such telecommunication links.
Unless a different term is specified in a signed pricing agreement, this Agreement shall commence on the earlier of the day Customer begins using the Services or the effective date of a pricing agreement and shall continue for one year from commencement (the “Initial Term”). The Agreement shall automatically renew for additional one year renewal terms (together with the Initial Term, the “Term”) until a party provides 60 days’ notice of its intention to terminate the Agreement. Notwithstanding anything to the contrary contained herein, Provider shall have the absolute right at any time to terminate this Agreement, and terminate Customer’s access to the Software and/or Services.
PROVIDER DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION IS IN ADDITION TO, AND NOT IN DEROGATION OF, THE PROVISIONS OF SECTION 6.
PROVIDER SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, NOR SHALL PROVIDER BE LIABLE FOR ANY LOSS OF DATA OR LOST PROFITS OF CUSTOMER, EVEN IF PROVIDER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER DURING THE TWO MONTHS PRECEDING ACCRUAL OF CUSTOMER’S CLAIM.
As between the Customer and Provider, the Software provided hereunder is proprietary to Provider and title thereto remains in Provider. Other than the rights to access and use the Software granted to Customer hereunder, or under a separate agreement with Provider, Customer acquires no rights in the Software including patents, copyrights, trademarks, and trade secrets, if any, embodied therein.
13.1 "Confidential Information" is defined to include the proprietary information of each party, including financial information, Data, business plans, forecasts, trade secrets, as well as the object codes, source codes, documentation, and functionality of the Software.
13.2 The party receiving the Confidential Information (the "Receiving Party") from the party who owns or holds in confidence such Confidential Information (the "Owning Party") may use the Confidential Information solely for the purpose of performing its obligations or enforcing its rights under this Agreement.
13.3 The Receiving Party shall not disclose the Confidential Information except to those persons having a need to know for purposes authorized herein. Each party shall take appropriate action, by instruction to or agreement with its employees, agents and subcontractors, to maintain the confidentiality of the Confidential Information. The Receiving Party shall promptly notify the Owning Party in the event that the Receiving Party learns of an unauthorized release of Confidential Information.
13.4 The Receiving Party shall have no obligation with respect to: (a) Confidential Information made available to the general public without restriction by the Owning Party or by an authorized third party; (b) Confidential Information known to the Receiving Party independently of disclosures by the Owning Party under this Agreement; (c) Confidential Information independently developed by the Receiving Party; or (d) Confidential Information that the Receiving Party may be required to disclose pursuant to subpoena or other lawful process; provided, however, that unless restricted by applicable law, court order, or regulation, the Receiving Party notifies the Owning Party in a timely manner to allow the Owning Party to appear and protect its interests.
13.5 The parties acknowledge that monetary remedies may be inadequate to protect rights in Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights.
Neither Customer nor Provider shall assign or transfer this Agreement or any of their rights or obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld; provided, however, Provider may assign its rights or obligations hereunder without consent of Customer: (i) to a subsidiary corporation in which the assigning party holds a 50% or greater equity interest; and (ii) in connection with any transaction involving the sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and bind successors and permitted assigns of Provider and Customer. In no event shall consent to assignment be conditioned upon the payment of any fee.
15.1 Each of Customer and Provider shall indemnify and hold harmless the other and its affiliates, directors, officers, employees and agents (collectively, “indemnitees") against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any third-party claim for personal injury or property damage (other than intellectual property infringement claims, which are exclusively governed by Sections 15.2 and 15.3), including any damages finally awarded that are attributable to such claim and any reasonable expense incurred by indemnitee in assisting indemnitor in defending against such claim.
15.2 Provider shall indemnify and hold harmless Customer and its indemnitees against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any third-party claim that the Services, Customer's use of the Services, or the license granted hereunder infringes or violates the U.S. copyright or trade secret of any third party, including any damages finally awarded attributable to such claim.
15.3 Customer shall indemnify and hold harmless Provider and its indemnitees against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any third-party claim resulting from: (a) Customer’s or Provider’s use or loss of Customer’s Data and other materials; or (b) Customer's violation of law.
15.4 Any indemnity obligation hereunder shall be conditioned upon the party being indemnified providing: (i) written notice within a reasonable time from when such party is served with legal process in an action asserting such claims; (ii) reasonable assistance to the responsible party in defending the claim; and (iii) sole authority to the responsible party to defend or settle such claim.
Provider, in performance of this Agreement, is acting as an independent contractor and shall have the exclusive control of the manner and means of performing the work contracted for hereunder. Personnel supplied by Provider hereunder are not Customer's employees or agents and shall not hold themselves out as such, and Provider assumes full responsibility for their acts and for compliance with any applicable employment and tax laws with respect to such employees. Nothing contained in this Agreement shall be construed to create a joint venture or partnership between the parties.
Neither party hereto shall be liable for any failure or delay in performance of its obligations hereunder by reason of any event or circumstance beyond its reasonable control, including without limitation acts of God, war, riot, strike, labor disturbance, fire, explosion, flood, or shortage or failure of suppliers.
During the Term of this Agreement and for two (2) years thereafter, neither Provider nor Customer will, without the prior written consent of other party, which may be withheld in that party's sole discretion, offer employment to, employ or subcontract work to any person employed then or within the preceding twenty-four (24) months by the other party.
Any provision of this Agreement related to confidentiality, publicity, and indemnification or which by its terms provides for survival shall survive the termination of this Agreement. All notices required or permitted under this Agreement shall be in writing and sent to the other party at the addresses first written above or to such other address as any party may substitute from time to time by written notice to the others and shall be deemed validly given upon receipt of such notice given by certified mail, postage prepaid, or personal or courier delivery. This Agreement shall be governed by and construed in all respects in accordance with the substantive laws of the State of Tennessee. The parties shall attempt to resolve any dispute arising hereunder informally and amicably. In the event such efforts fail, any dispute hereunder shall be resolved in the state or federal courts having appropriate jurisdiction located in Nashville, Tennessee. All agreements, clauses and covenants contained herein are severable, and in the event any of them shall be held to be unconstitutional, invalid, illegal, or unenforceable, the remainder of this Agreement shall be interpreted as if such unconstitutional, invalid, illegal or unenforceable agreements, clauses or covenants were not contained herein. The failure by either party to exercise any right provided hereunder shall not be deemed a waiver of such right. This Agreement may be amended, modified or supplemented only by a writing signed by the parties to this Agreement. The parties hereto acknowledge that they have read this Agreement in its entirety and understand and agree to be bound by all of its terms and conditions, and further agree that this Agreement and any exhibits or schedules hereto constitute a complete and exclusive statement of the understanding between the parties with respect to the subject matter hereof which supersede any and all other communications between the parties, whether written or oral. Any prior agreements, promises, negotiations or representations related to the subject matter hereof not expressly set forth in this Agreement, or any exhibits or schedules hereto, are of no force and effect.
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