Soloinsight's Terms of Service
THIS SOLOINSIGHT SAAS AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS FOR USE OF THE SERVICES AND IS BETWEEN SOLOINSIGHT INC, A DELAWARE CORPORATION WITH ITS PRINCIPAL OFFICE AT 29 NORTH WACKER DR., SUITE 1000, CHICAGO, IL 60606 ("SOLOINSIGHT"), AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT AND ITS AFFILIATES (“CUSTOMER”). BY COMPLETING AN APPLICABLE ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING AN "ACCEPT" OR SIMILAR BUTTON, ACCEPTING QOUTE, OR OTHERWISE USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE SERVICES WITHOUT AGREEING TO THIS AGREEMENT FIRST. IF A WRITTEN AGREEMENT REGARDING CUSTOMER’S USE OF THE SERVICES EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH SI AND CUSTOMER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
Soloinsight has developed and owns a proprietary cloud Service for use in connection with visitor lifecycle management and physical site access control. Customer desires to subscribe to and utilize the Service according to the terms and conditions of this Agreement. Therefore, in consideration of the foregoing and the mutual covenants set forth herein, the parties agree as follows:
1. Overview of Customer’s Access to and Use of the Service.
1.1 Customer Obligations. The customer is responsible for all Authorized Users’ use of the Service and their compliance with this Agreement and the Documentation. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; (b) prevent unauthorized access to, or use of, the Service, and (c) notify Soloinsight promptly of any such unauthorized access or use. Customer and its Authorized Users shall not: (i) use the Service in violation of Applicable Law; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) attempt to duplicate or reverse engineer the Service; (v) interfere with or disrupt the performance of the Service or the data contained therein; or (vi) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation.
1.2 Soloinsight Obligations. Pursuant to this Agreement and the applicable accepted Quote(s), Soloinsight shall make the Service available to Customer and its Authorized Users in accordance with the Documentation during the Term. Customer and its Authorized Users may access and use the Service in accordance with the Documentation solely for the internal business purposes of Customer and its Affiliates, and not for the benefit of any third parties.
2. Fees & Payment.
2.1 Fees. The customer shall pay the fees and costs specified in the accepted Quote. Except as otherwise stated in an accepted Quote, all fees specified are payable in United States dollars and are based on Service access rights acquired pursuant to this Agreement and not actual usage.
2.2. Non-Cancelable & Non-Refundable. Subject to Section 6.2 (Warranty Remedies), Section 7.1 (Indemnification by Soloinsight), Section 9.3 (Termination), all Customer payment obligations under this Agreement and all accepted Quotes are non-cancelable and all payments made are non-refundable. Further, the license rights for the number of Authorized Users set forth on any respective accepted Quote cannot be decreased during the Term.
2.3 Invoicing & Payment. Customer will be invoiced the specified fees for the Service in accordance with the relevant accepted Quote(s). Except as otherwise set forth in any accepted Quote(s), all fees due hereunder (except fees subject to good faith dispute) shall be due and payable within thirty (30) days of invoice date. The customer shall provide complete and accurate billing and contact information and, upon request, will make payments hereunder via wire transfer or ACH.
2.4 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Soloinsight's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.5 Suspension of Service for Non-Payment. If Customer's account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Soloinsight reserves the right to suspend the Service upon thirty (30) days written notice, without being liable to Customer, until such amounts are paid in full.
2.6 Taxes. Except as otherwise stated in an accepted Quote, fees due to Soloinsight for access to and use of the Service do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, "Taxes"). Customer, as required by Applicable Law, shall be responsible for all applicable sales, use or similar transaction taxes based on equipment, software, products, and services provided under this Agreement. Soloinsight shall be responsible for all other applicable taxes stemming from the sale or provision of the Service, including income or franchise taxes and impositions under unemployment, social security, and worker's compensation laws. Soloinsight will not attempt to collect or pay on behalf of Customer taxes for transactions that are not subject to tax, or for which Customer is exempt, which Customer will establish with reasonable evidence of tax-exempt status. Should Soloinsight have a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Soloinsight with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Proprietary & Intellectual Property Rights.
3. 1 Ownership and Reservation of Rights to Soloinsight Intellectual Property. Soloinsight or its third-party licensors own all rights, title, interest in and to the Service, Documentation, and other Soloinsight Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, Soloinsight reserves all rights, title and interest in and to the Service, and Documentation, and all related Intellectual Property Rights. No rights are granted to Customer or its Authorized Users hereunder other than as expressly set forth herein.
3.2 License Grant. Soloinsight hereby grants Customer a non-exclusive, non-transferable, right to use the Service and Documentation (a) during the Term, (b) solely for the internal business purposes of Customer and its Authorized Users and not for the benefit of any third parties, and (c) subject to the terms and conditions of this Agreement and the scope of use defined in the relevant accepted Quote(s).
3.3 Restrictions. Customer shall not: (a) modify, copy or create any derivative works based on the Service or Documentation; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Users as permitted herein; (c) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Soloinsight in the provision of the Service and Documentation, except to the extent required by Applicable Law; (d) access the Service or Documentation in order to build any commercially available product or service; or (e) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.
3.4 No Ability to Sublicense. Customer may not sub-license or permit access to and use of the Service by any third parties without Soloinsight’s prior written consent.
3.5. Ownership of and Responsibility for Customer Data.
(a) As between Soloinsight and Customer, Customer shall be the sole and exclusive owner and controller of any and all Customer Data (including Personal Information) that Customer and its Authorized Users submit to the Service for processing by Soloinsight, and, unless otherwise specified herein, Customer is solely responsible for compliance with all Applicable Law relating to its Customer Data including, but not limited to, the manner and mechanism by which Customer Data (including Personal Information) is generated, collected, obtained, or submitted to the Service for processing.
(b) As a processor/sub-processor, Soloinsight shall not retain, use, or disclose any Customer Data (including Personal Information) received from Customer and its Authorized Users (including any third-party data controller) other than as necessary to provide the Service pursuant to this Agreement, including any accepted Quote(s).
(c) Notwithstanding the foregoing, Customer acknowledges and agrees that Soloinsight may disclose Customer Data to its own third-party licensors or sub-contractors solely to the extent necessary to provide the Service and not for such third-party licensors’ or sub-contractor’s own use or further disclosure.
3.6 Customer Input. Customer hereby grants Soloinsight all rights, title and interest in any Customer Input provided to Soloinsight relating to the Service. Soloinsight shall have no obligation to make any improvement based on Customer Input. Customer shall have no obligation to provide Customer Input to Soloinsight.
3. 7 Aggregated Data Use. Soloinsight owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Soloinsight from utilizing the Aggregated Data for purposes of operating Soloinsight’s business or improving the Service, provided that Soloinsight’s use of Aggregated Data shall not reveal or reflect the identity, whether directly or indirectly, of any individual or household or any specific data entered by any identifiable individual into the Service. In no event does the Aggregated Data include any personally identifiable information.
3.8 Use of Parties’ Names and Logos.
(a) At least once during the first thirty (30) days of the Term, Customer agrees to publicize that Customer is a user of Soloinsight software in Customer’s social media feeds and/or on Customer’s website. For that purpose only, during the Term, Soloinsight hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to use Soloinsight’s name and logo solely to indicate Customer is a user of Soloinsight software in Customer’s social media feeds and/or on Customer’s website. Customer acknowledges Soloinsight’s continued ownership of Soloinsight’s name and logo and acknowledges that all associated goodwill from use of such name and logo by Customer will inure to the sole benefit of Soloinsight. Customer will not use Soloinsight’s name or logo in a manner that will diminish or otherwise damage Soloinsight’s goodwill. Customer will promptly correct and remedy any deficiencies in its use of Soloinsight’s name and logo upon notice from Soloinsight.
(b) During the Term, Customer hereby grants to Soloinsight a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to use Customer’s name and logo solely to indicate Customer is a user of Soloinsight software, including on Soloinsight’s website and in Soloinsight’s marketing materials. Soloinsight acknowledges Customer’s continued ownership of Customer’s name and logo and acknowledges that all associated goodwill from use of such name and logo by Soloinsight will inure to the sole benefit of Customer. Soloinsight will not use Customer’s name or logo in a manner that will diminish or otherwise damage Customer’s goodwill. Soloinsight will promptly correct and remedy any deficiencies in its use of Customer’s name and logo upon notice from Customer.
4. Confidentiality.
4.1 Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential.
4.2 In the case of Soloinsight, Confidential Information includes, but is not limited to, proprietary software or code currently existing or under development, non-software products or services currently existing or under development, hardware information, pricing, fees, proposals, this Agreement, marketing plans, other client information, product development information, discoveries, intellectual property, know-how, trade secrets, ideas, methods, charts, tables, specifications, techniques, samples, summaries, models, data, programs, manuals, Documentation, technical information, designs, drawings, schematics, videos, protocols, processes, financial information, information security information, proprietary databases, and any third-party licensor confidential information included with or incorporated into the Service. In the case of Customer, Confidential Information includes, but is not limited to, Customer Data.
4.3 A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party, or (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.
5. Customer Data.
5.1 Protection and Security. During the Term, Soloinsight shall maintain a formal security program that is designed to: (i) commercially reasonably ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to or disclosure of Customer Data. Soloinsight will make security assessments of the Service from time to time and may update the Service and security program based on the results of such assessments. Customer understands and agrees that its use of the Service and Customer’s compliance with the terms of this Agreement does not constitute compliance with any Applicable Law. As a data controller, Customer acknowledges and agrees that it has an independent duty to comply with all Applicable Law, including those concerning data privacy and data security, that pertain to Customer, Authorized Users, and Customer Data (including Personal Information). CUSTOMER ACKNOWLEDGES THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND THAT SOLOINSIGHT DOES NOT AND CANNOT GUARANTEE THAT THE SERVICE, SOLOINSIGHT’S SYSTEMS, AND THE INFORMATION CONTAINED THEREIN (INCLUDING CONFIDENTIAL INFORMATION OR CUSTOMER DATA) CAN NEVER BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS. EXCEPT TO THE EXTENT DIRECTLY CAUSED BY SOLOINSIGHT’S BREACH OF THIS SECTION, SOLOINSIGHT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS NOR SHALL ANY SUCH UNAUTHORIZED ACCESS CONSTITUTE A BREACH BY SOLOINSIGHT OF ITS CONFIDENTIALITY OBLIGATIONS.
5.2 Unauthorized Access or Disclosure. If either party believes that there has been unauthorized access to disclosure of Customer Data or other Confidential Information due to a security breach, such party shall notify the other party as soon as practicable or as otherwise required by Applicable Law. Each party will reasonably assist the other party in investigating, remediating, or mitigating any such unauthorized access or disclosure, including but not limited to providing any required notification or credit monitoring/identity theft protection to actually or potentially impacted individuals. Each party shall bear its respective costs of such investigation, remediation, or mitigation, to the extent the security breach resulted from the actions or inactions of the party.
6. Warranties & Disclaimers.
6.1 Warranties.
(a) Each party warrants that it has the authority to enter into this Agreement through its undersigned representative.
(b) Subject to the allocation of responsibilities in Section 3.5, above, and in connection with its performance of this Agreement, each party warrants that it will comply with all laws, regulations, and rules that may be applicable to it related to data privacy, international communications, and the transmission of technical or personal data.
(c) Soloinsight warrants that during the Subscription Term the Service shall perform materially in accordance with the Documentation.
6.2 Warranty Remedies. As Customer's exclusive remedy and Soloinsight's sole liability for breach of the warranty set forth in Section 6.1(c), above, (a) Soloinsight shall cause the non-conforming Service to be corrected at no additional charge to Customer, or (b) in the event Soloinsight is unable to correct such deficiencies after good-faith efforts, Soloinsight shall refund Customer amounts paid that are attributable to the defective Service from the date Soloinsight received notice of such deficiency. To receive warranty remedies, Customer must promptly report deficiencies in writing to Soloinsight, but no later than thirty (30) days of the date Customer first becomes aware of the deficiency.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOLOINSIGHT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. SOLOINSIGHT DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.
7. Mutual Indemnification.
7.1 Indemnification by Soloinsight. Soloinsight shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided, however, that Customer: (a) promptly gives written notice of the Claim to Soloinsight; (b) gives Soloinsight sole control of the defense and settlement of the Claim (provided that Soloinsight may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Soloinsight, at Soloinsight's cost, all reasonable assistance. Soloinsight shall not be required to indemnify Customer in the event of: (w) modification of the Service by Customer or Authorized Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (x) use of the Service in a manner materially inconsistent with the Documentation; (y) use of the Service in combination with any other product or service not provided by Soloinsight; or (z) use of the Service in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Service or Soloinsight reasonably believes it will be enjoined, Soloinsight shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Soloinsight, then use of the Service may be terminated at the option of Soloinsight and Soloinsight’s sole liability shall be to refund any prepaid fees for the Service that were to be provided after the effective date of termination.
7.2 Indemnification by Customer. Customer shall defend, indemnify and hold Soloinsight harmless from any Claims made or brought by a third party based upon or arising out of the creation, capture, or collection of Customer Data or its submission to the Service for processing, including without limitation claims predicated on any alleged violation of Applicable Law concerning protection of privacy, personal information, or rights in data collections; provided, however, that Soloinsight: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Soloinsight of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance in defending any such Claims.
8. Limitation of Liability.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL SOLOINSIGHT (OR SOLOINSIGHT’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR SOLOINSIGHT’S SERVICE DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID FOR THE FIRST TWELVE MONTH PERIOD).
8.2 Exclusion of Damages. EXCEPT WITH RESPECT TO SOLOINSIGHT’S INDEMNITY OBLIGATIONS, IN NO EVENT SHALL SOLOINSIGHT HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF SOLOINSIGHT OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9. Term & Termination.
9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and will remain in force while any Subscription Term hereunder remains in effect. If no Subscription Term is in effect hereunder, either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other.
9.2 Cloud Subscription Service Term. Unless otherwise specified in an applicable accepted Quote, the term for the cloud subscription Service (“Subscription Term”) shall be thirty-seven (37) months from the Purchase Order Effective Date. The Subscription Term shall renew automatically for successive twelve (12) month renewal periods, unless either party gives written notice to the other party of its intent not to renew at least thirty (30) days prior to the end of the then current Subscription Term.
9.3 Termination for Cause. Either party may terminate this Agreement in its entirety, or in part with respect to any Quote: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination by Customer pursuant to this section, Soloinsight shall refund Customer on a pro rata basis any prepaid fees for the portion of the Service to have been provided after the effective date of termination. Soloinsight also may terminate a Subscription Term immediately if Customer or an Authorized User engages in the restricted activities of Sections 1.2(i)-(iv) or 3.3
9.4 Effect of Termination. Upon any termination of this Agreement or the Subscription Term, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under section 9.5) and Soloinsight Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Soloinsight prior to the effective date of termination. Upon Soloinsight’s termination of this Agreement for cause, all future amounts due under all accepted Quotes shall be accelerated and become immediately due and payable.
9.5 Return of Customer Data. Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement or the Subscription Term, Soloinsight will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) days after such request is received by Soloinsight. After such thirty (30) day period, Soloinsight will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data. Additionally, during the Subscription Term of the Agreement, Customers can extract data using Soloinsight’s standard web services. If Customer requires Soloinsight’s assistance, Customer may acquire Soloinsight professional services at Soloinsight’s then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Customer will determine the scope of the professional services engaged to extract data from the Soloinsight system and as such may increase or decrease Soloinsight’s professional services involvement in order to control costs.
9.6 Surviving Provisions. The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) Section 1.1 (“Soloinsight Obligations”); (ii) Section 3.2 (“License Grant”); and (iii) any Quote(s). All other provisions of this Agreement shall survive any termination or expiration of this Agreement.
10. General Provisions.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
10.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile or email with telephonic confirmation of receipt. Notices shall be addressed to the attention of the parties’ respective signatories of this Agreement, set forth below. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.
10.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.4 Force Majeure. Neither party shall be in breach of or liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Soloinsight or Customer employees, respectively), computer attacks or malicious acts, such as cyber-attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.5 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations hereunder, without the prior written consent of Soloinsight, except that, after reasonable prior notice thereof to Soloinsight, Customer may assign or transfer its rights and obligations under this Agreement to an Affiliate or successor to its business to which this Agreement relates. However, any such assignment or transfer of rights hereunder shall not release Customer of its obligations under this Agreement without Soloinsight’s prior written consent.
10.6 Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed exclusively by the internal laws of the state of Delaware, without regard to its conflicts of laws rules or choice of law principles. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the Circuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.7 Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, Customer shall not make the Service available to any user that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
10.8 Miscellaneous. This Agreement, including all applicable accepted Quotes and other exhibits or addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of this Agreement shall take precedence over provisions of the applicable accepted Quote(s). This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. This Agreement may be executed electronically, by facsimile and in counterparts, which taken together shall form one binding legal instrument.
11. Definitions. In addition to other defined terms throughout this Agreement, the following capitalized terms, as used herein, have the following meanings.
“Affiliate” means any other person or entity that directly or indirectly controls, is controlled by, or is under common control by either party to this Agreement. "Control" means direct or indirect ownership or control of more than 50% of the legal, beneficial, equitable, or voting interests of the subject party, whether through the ownership of voting shares, by contract or otherwise. Affiliates shall include such entities whether now existing or later established by investment, merger or otherwise, including the successors and assigns of such entities. A person or entity is an Affiliate only during the period that Control exists.
“Applicable Law” means any local, state, national and/or foreign law, treaty, and/or regulation applicable to a respective party.
“Authorized User” shall mean any person who is authorized by Customer to use or access the Service on its behalf, including but not limited to current or future employees, vendors, or consultants of Customer, or any of its Affiliates or subsidiaries for which a subscription to the Service has been purchased pursuant to an accepted Quote. The number of permitted Authorized Users is as set forth in the applicable Quote(s).
"Confidential Information" shall have the meaning ascribed to it in Section 4, above.
"Customer Data" means the electronic data or information (including Personal Information) submitted by Customer or Authorized Users to the Service or stored through the Service, however it may be generated, collected, obtained, or transmitted.
“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users relating to the operation or functionality of the Service, excluding Customer Data.
“Documentation" means the standard operating manuals, user instructions and technical specifications for the Service and supplied by Soloinsight to Customer, as may be updated by Soloinsight from time-to-time.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Malicious Code” means computer viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“Purchase Order” means a written purchase order issued by Customer to Soloinsight indicating acceptance of a Quote that authorizes Soloinsight to invoice Customer for the provision of the Service pursuant to the terms and conditions of this Agreement.
“Purchase Order Effective Date” means the effective date stated on a Purchase Order issued by Customer and accepted by Soloinsight. If unstated, the effective date is the date on which the Purchase Order is received and accepted by Soloinsight.
“Personal Information” means information or data that identifies, relates to, describes, or is reasonably capable of being associated with an individual or household, including personally identifiable information, sensitive personal information, and such similar information or data regulated under Applicable Law.
“Quote” means the written quote prepared by Soloinsight to describe the nature and scope of the Service to be obtained by Customer hereunder for deployment and use by Customer and its Authorized Users. In addition to specifying the Service subscribed to and deployed, the Quote describes the Customer’s integration type, customized configuration, and the associated fees and costs for the Service.
"Service" means the CloudGate software-as-a-service applications subscribed to by Customer pursuant to this Agreement and further described in the Quote and Documentation.
