MASTER CUSTOMER AGREEMENT
(You must scroll through the agreement before you can accept the Terms and Conditions)
This Master Customer Agreement (this “Agreement”) is made and entered into between i3 Systems, Inc. (“i3”) and Customer. Each of i3 and Customer is a “Party” and, together, the “Parties.”
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) ANY i3 TECHNOLOGY, ENGAGING i3 TO PROVIDE SERVICES, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY PRODUCT OR RECEIVE ANY PROFESSIONAL SERVICES.
1 Structure
1.1 i3 Technology and Services; Order. This Agreement sets forth the terms and conditions on which i3 may make available to Customer certain i3 Technology or Services, each as expressly identified in a quote, order, statement of work, or other ordering document that (a) is signed by the Parties and (b) expressly references and incorporates these Master Terms. Each Order is subject to the terms of, and is deemed incorporated into, this Agreement. “Services” means either or both Support Services and Professional Services, as the context requires. “i3 Technology” means the Software provided to Customer by i3, any i3 APIs provided to Customer by i3, and all Documentation.
1.2 Addenda. All i3 Technology and Services will be provided pursuant to a signed Order. An Order may reference one or more additional documents that contain terms relevant to particular i3 Technology or Services (each, an “Addendum”). All Addenda are deemed incorporated into this Agreement.
1.3 Order Term. Unless earlier terminated in accordance with this Agreement or the applicable Order, each Order will continue for the initial subscription term specified in such Order (“Initial Term”) and, if such Order provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Order will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Term or such other length of Renewal Term period as stated on the Order (the Initial Term and each Renewal Term, if any, collectively, the “Order Term” of such Order). Notice of non-renewal of an Order must be provided by a Party at least 30 days prior to the end of the Initial Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order). Renewal of any Order may be conditioned on and subject to Customer’s agreement to changes to these Master Terms and applicable Addenda. Termination of this Agreement will terminate all Order Terms then in effect unless otherwise specified on the applicable Order. Orders that are solely for Professional Services will remain in effect until the Professional Services are completed (unless earlier terminated in accordance with this Agreement or the Order) and will not automatically renew, nor will any Professional Services included on any other Order automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Order. Customer acknowledges that its access to i3 Technology (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Term.
1.4 Order of Precedence. Any conflict between an Order, an Addendum, or this Agreement (the “Master Terms”) will be resolved according to the following order of precedence: (1) the Order; (2) the Addendum; and (3) the Master Terms.
2 Product Rights and Restrictions
2.1 License. Subject to Customer’s compliance with this Agreement, i3 hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under i3’s rights in i3 Technology as specified on the applicable Order to do the following (the “License”):
(a) install and operate, solely through its authorized employees (“Authorized Users”), the downloadable software specified on the Order (“Software”) in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Order) to, within the scope of applicable license restrictions, collect data from IOT devices (“Collected Data”) and use the Software to process that data (“Processed Data”) for use by Customer;
(b) if i3 makes available to Customer any application programming interface for use in connection with Software (an “i3 API”), to use the i3 API solely for Customer’s own internal business purposes and only for the purposes of transmitting and receiving Collected Data and Processed Data; and
(c) to the extent that Software or any i3 API is accompanied by any i3-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Software or i3 API (“Documentation”), solely by and through its Authorized Users, make a reasonable number of copies of the Documentation and use that Documentation, in each case, solely in support of its authorized use of the i3 Technology in accordance with this Agreement. Subject to any early termination as set forth in this Agreement, the rights under the License will continue for the Order Term set forth in the applicable Order.
2.2 License Types. Customer will abide by the following applicable restrictions, as indicated on the applicable Order: (a) if a “Volume-Based License” is indicated on the applicable Order, Customer may use the i3 Technology solely for the volume of Collected Data set forth in the Order; (b) if a “Device-Based License” is indicated on the applicable Order, Customer may use the i3 Technology solely in connection with the number of IOT devices set forth in the Order; and (c) if a “Application-Based License” is indicated on the applicable Order, Customer may use the Processed Data solely for the number of Applications set forth in the Order. Limits and restrictions with respect to other license types will be as set forth on the applicable Order.
2.3 Additional Obligations and Restrictions. Customer will use the i3 Technology in compliance with all applicable laws and regulations. Customer will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, or sublicense the i3 Technology to any third party; (b) decompile, disassemble, or reverse engineer the i3 Technology , in whole or in part; (c) allow access to the i3 Technology by anyone other than Customer’s employees; (d) write or develop any derivative software or any other software program based upon the i3 Technology or any Confidential Information of i3; (e) use the i3 Technology to provide processing services to third parties, or otherwise use the i3 Technology on a ‘service bureau’ or similar basis; or (f) provide, disclose, divulge, or make available to, or permit use of the i3 Technology by any third party without i3’s prior written consent. Customer will prevent any unauthorized use of the i3 Technology and will immediately notify i3 in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to i3 Technology through Customer.
2.4 Additional Features. Customer acknowledges that not all of the features or functionality of the i3 Technology may be available for Customer’s license type irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
2.5 Educational Software. If an Order indicates that Customer will receive i3 Technology for educational purposes, then Customer may use the i3 Technology only for the purpose of educating students and conducting student associated research, solely for the designated time period, and subject to any additional usage restrictions specified on the applicable Order. Customer acknowledges that educational versions of the i3 Technology may be automatically disabled upon expiration of the designated term (at the end of which Customer’s right to use the i3 Technology under the applicable Order also expires), and that any data stored in such i3 Technology may become unavailable at that time. Notwithstanding anything to the contrary in this Agreement, all i3 Technology provided for educational purposes is delivered “AS-IS,” without any express or implied warranties, and no warranties or maintenance obligations will apply to Customer. i3 HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THAT i3 TECHNOLOGY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THAT i3 TECHNOLOGY.
2.6 Evaluation Software. If an Order indicates that Customer will receive i3 Technology for evaluation or proof-of-concept purposes, then Customer may use the i3 Technology only for the purpose of evaluating the functions and performance of the i3 Technology, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order. Customer acknowledges that evaluation or proof-of-concept versions of the i3 Technology may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use the i3 Technology under the applicable Order also expires), and that any data stored in such i3 Technology may become unavailable at that time. Notwithstanding anything to the contrary in this Agreement, all i3 Technology provided for evaluation or proof-of-concept purposes is delivered “AS-IS,” without any express or implied warranties, and no warranties or maintenance obligations will apply to Customer. i3 HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THAT i3 TECHNOLOGY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THAT i3 TECHNOLOGY.
2.7 Third-Party Software. To the extent that i3 Technology includes or is accompanied by third-party software or other products that i3 provides to Customer or that is otherwise identified in the Documentation as being required to use properly such i3 Technology (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms. Certain i3 Technology may include code and components licensed under an open source license, as further described at www.i3-iot.com or such other location specified by i3.
2.8 Ownership; Data. As between i3 and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into Software (including Collected Data) or otherwise makes available to i3 in connection with Customer’s use of i3 Technology and (b) data that is generated and made available to Customer by the Software through use of the data described in part (a) above (including Processed Data) ((a) and (b) collectively, “Customer Data”). Customer hereby grants i3 a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (y) during the Term, for the purpose of exercising i3’s rights and performing its obligations under this Agreement and (z) in perpetuity, in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve i3’s and its Affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant i3 the licenses set forth in this section and to enable i3 to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, i3 owns all right, title, and interest, including all intellectual property rights, in and to the i3 Technology, Deliverables, and any improvements to any i3 products or services made as a result of i3’s use, processing, or generation of Customer Data.
2.9 Feedback. If Customer provides any feedback to i3 concerning the functionality and performance of i3 Technology or Services (including identifying potential errors and improvements), Customer hereby assigns to i3 all right, title, and interest in and to the feedback, and i3 is free to use the feedback without payment or restriction.
3 Support and Professional Serivices
3.1 Standard Support. Subject to the terms of this Agreement, i3 will use commercially reasonable efforts to provide support for Authorized Users’ authorized use of the i3 Technology in accordance with i3’s then-current policies for support (the “Support Services”). From time to time, i3 may make available to Customer additional support coverage, which will be subject to an additional fee and additional terms.
3.2 Provision of Professional Services. Subject to the terms of this Agreement, i3 will use commercially reasonable efforts to provide any implementation, installation, configuration, customization, or other professional services expressly identified on an Order (which may be in the form of a statement of work) (the “Professional Services”). i3 shall perform the Professional Services in a professional manner in accordance with industry standards. Customer will make available in a timely manner at no charge to i3 all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by i3 for the performance of the Professional Services. Customer is responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. Customer will provide, at no charge to i3, office space, services, and equipment as i3 reasonably requires to perform the Professional Services
3.3 Deliverables. i3 retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by i3 in connection with its performance of Professional Services (“Deliverables”). If i3 provides any Deliverables to Customer pursuant to the applicable Order, i3 hereby grants to Customer a non-exclusive, royalty-free, fully paid up, worldwide license under i3’s rights in the Deliverables to use and exploit such Deliverables in connection with the i3 Technology and Professional Services during the Term.
3.4 Modifications. The terms of this section will apply to any Order for Professional Services that does not expressly set forth a procedure in accordance with which the Parties may make changes to such Order. Customer may request a modification to the Professional Services to be performed pursuant to any particular Order by written request to i3 specifying the desired modifications (each a “Change Order”). i3 will, within a reasonable time following receipt of such Change Order request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Order. If Customer accepts a Change Order in writing within 10 days after receiving it, such modifications in the Change Order shall be performed under the terms of this Agreement.
4 Fees and Payment
4.1 Fees and Payment Terms. Customer will pay i3 the fees and any other amounts owing under this Agreement as specified in the applicable Order, including, where applicable, any early termination fees specified on the Order. Unless otherwise specified in such Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by i3 to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
4.2 Taxes. Other than net income taxes imposed on i3, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by i3 after all such Taxes are paid are equal to the amounts to which i3 would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
4.3 Professional Services Charges. Except as otherwise specified in the applicable Order, Customer will pay i3 at i3’s then-standard hourly rates as well as any other fees required by the applicable Order. In addition, for each Order including Professional Services, Customer will reimburse i3 for (a) reasonable travel and living expenses incurred by i3’s employees and contractors for travel from i3’s offices in connection with the performance of the Professional Services; (b) reasonable international telephone charges (if applicable) that are necessary to the performance of Professional Services under this Agreement; and (c) any other expenses for which reimbursement is contemplated in the applicable Order. Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Agreement and each applicable Order.
5 Term and Termination
5.1 Term. This Agreement will remain in effect until terminated in accordance with this section (the “Term”).
5.2 Termination for Convenience. Either Party may terminate this Agreement for convenience immediately upon notice to the other Party at any time that no Order is in effect.
5.3 Termination for Material Breach. Either Party may terminate this Agreement or one or more Order if the other Party does not cure its material breach of this Agreement or the applicable Order(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this section will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, i3 may immediately terminate this Agreement upon notice to Customer if i3 reasonably believes that Customer has made or distributed any unauthorized copies of any i3 Technology , has violated this agreement, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge i3’s intellectual property rights, including rights in and to any i3 Technology. Without limiting any other provision of this Agreement, if Customer fails to timely pay any fees, i3 may, without limitation to any of its other rights or remedies, suspend access to the i3 Technology or performance of the Professional Services under all Orders until it receives all amounts due.
5.4 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to i3 any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide i3 with a written certification signed by an authorized Customer representative certifying that all use of i3 Technology by Customer has been discontinued and that all i3 Technology and Confidential Information of i3 in Customer’s possession or control has been returned or destroyed.
5.5 Survival. Notwithstanding anything to the contrary herein, the restrictions contained in this Agreement will survive termination or expiration of this Agreement.
6 Confidentiality
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, i3’s “Confidential Information” includes i3 Technology all i3 technical information, and all information concerning i3 Technology-related database structure information and schema. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, i3 is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
7 Audit
7.1 Compliance Records. Customer will create and maintain complete and accurate records containing all information necessary to enable i3 to verify Customer’s compliance with this Agreement. Customer will promptly provide a copy of such records to i3 upon request. Customer acknowledges that i3 will have the right to implement in the i3 Technology testing, compliance, and monitoring tools and technologies to collect data concerning Customer’s usage of such i3 Technology . Nothing in this Agreement will be construed to limit i3’s right to use such data to verify Customer’s compliance with this Agreement and make improvements to i3 Technology.
7.2 Audit. During the Term and for a period of one year thereafter, i3 will have the right, at its own expense, upon at least 5 calendar days’ prior notice, to periodically inspect and audit Customer’s use of the i3 Technology for purpose of determining Customer’s compliance with the terms and conditions of this Agreement. Customer will cooperate with i3 in the performance of any such audit, and will provide to i3 or a third party designated by i3 such access to Customer’s relevant records, data, information, personnel, computer systems and / or facilities as i3 may reasonably request for such limited purposes. i3 will bear the costs of any such audit unless such audit determines that Customer has violated the terms and conditions of this Agreement, in which case (a) Customer will reimburse i3 for all expenses incurred in connection with the audit, (b) Customer will pay i3 all fees that are applicable to Customer’s unauthorized use (e.g., additional seat licenses to cover use in excess of Customer’s previously purchased seat licenses), and (c) i3 may immediately terminate this Agreement for cause, in addition to any and all remedies available to i3 in law or equity.
8 Warranties and Disclaimer
8.1 Limited i3 Warranties. i3 hereby warrants, for the benefit of Customer only, that Software will materially conform to the applicable Documentation (the “Software Warranty”) for a period of 30 days after the Software is first made available to Customer (the “Warranty Period”), provided that the Software Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Software by Customer or any third party or any combination of the applicable Software with APIs, software, hardware, or other technology not provided by i3 under the applicable Order. If any defect or error covered by the Software Warranty occurs, Customer will provide i3 with sufficient detail to allow i3 to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, i3 will, at its sole option, either (a) correct such error or defect in the Software, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the Software and refund any license or subscription fees previously paid by Customer in connection with such Software, and in Customer’s right to use the Software will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for i3’s breach of the warranty. i3 is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by a Software that Customer has modified, misused, or damaged.
8.2 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
8.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS OR AN ORDER OR ADDENDUM, i3 MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. i3 EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. i3 DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR PROFESSIONAL SERVICES. i3 DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. i3 DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY A PRODUCT OR DOCUMENTATION, OR IN CONNECTION WITH THE PROFESSIONAL SERVICES, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. i3 EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCTS OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.
9 Indemnification
9.1 Defense by i3. i3 will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of Software as permitted under this Agreement infringes or misappropriates any third party’s patent, copyright, or trademark if: (a) Customer gives i3 prompt written notice of the Claim; (b) Customer grants i3 full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as i3 may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim subject to indemnification under this Agreement without i3’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but i3 will have sole control over the defense and settlement of the Claim.
9.2 Indemnification by i3. i3 will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under this Agreement; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim covered by this Agreement (other than attorneys’ fees and costs incurred without i3’s consent after i3 has accepted defense of the Claim); and (c) all amounts that i3 agrees to pay to any third party to settle any Claim under this Agreement.
9.3 Exclusions from Obligations. i3 will have no obligation under this Agreement for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of Software in combination with other products or services not provided by i3 if such infringement or misappropriation would not have arisen but for such combination; (b) Software provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of Software by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use Software in accordance with instructions provided by i3, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of Software not made or authorized in writing by i3 where such infringement or misappropriation would not have occurred absent such modification.
9.4 Remedy. If i3 becomes aware of, or anticipates, a Claim subject to indemnification, then i3 may, at its option (a) modify the Software so that it becomes non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order(s) on written notice to Customer and refund to Customer any pre-paid but unused fees (which, in the case of perpetual licenses, will be calculated based on 3-year straight-line basis).
9.5 Limited Remedy. This Agreement states i3’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by any i3 Technology or Services.
9.6 Defense by Customer. Customer will defend i3 from any actual or threatened third-party Claim arising out of or based upon Customer’s use of i3 Technology, provision of the Customer Data, or breach of any of the provisions of this Agreement, or that is an Excluded Claim, if: (a) i3 gives Customer prompt written notice of the Claim; (b) i3 grants Customer full and complete control over the defense and settlement of the Claim; (c) i3 provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (d) i3 complies with any settlement or court order made in connection with the Claim. i3 will not defend or settle any Claim subject to indemnification under this section without Customer’s prior written consent. i3 will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
9.7 Indemnification by Customer. Customer will indemnify i3 from and pay (a) all damages, costs, and attorneys’ fees finally awarded against i3 in any Claim under this Agreement; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by i3 in connection with the defense of a Claim under this Agreement (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under this Agreement.
10 Limitations of Liability
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, i3 WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF i3 IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL i3 BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, A PRODUCT.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL i3’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO i3 UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY i3 TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11 General
11.1 Relationship. i3 will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
11.2 Use of Brand Name. i3 may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of i3 in a ‘customer’ section of i3’s website, brochures, or other promotional materials, or as part of a list of i3’s customers in a press release or other public relations materials. Any such limited use by i3 shall include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company, and shall in no way suggest that i3 is affiliated with, or speaking on behalf of, Customer or Customer’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof.
11.3 Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that i3 may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
11.4 Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export i3 Technology. The i3 Technology, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the i3 Technology are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
11.5 U.S. Government Restricted Rights. The Software is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
11.6 Subcontractors. i3 may utilize subcontractors or other third parties to perform its duties under this Agreement so long as i3 remains responsible for all of its obligations under this Agreement.
11.7 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the applicable Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this section. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.
11.8 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Los Angeles County, California in connection with any action arising out of or in connection with this Agreement.
11.10 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of i3 Technology under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the i3 Technology will immediately terminate.
11.12 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
11.13 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of i3 that are not described in an Order and with respect to which Customer has executed a separate agreement with i3 that remains in effect. No employee, agent, or other representative of i3 has any authority to bind i3 with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. i3 will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless i3 specifically provides a written acceptance of such provision signed by an authorized agent of i3.
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